UNIVERSITY  OF  CALIFORNIA 
AT  LOS  ANGELES 


u? 


AN  EXAMINATION 


THE  NATURE  OF  THE  STATE 


A  Study  in  Political  Philosophy 


BY 


WESTEL  WOODBURY  WILLOUGHBY,  Ph.D. 

.ITICAL   PHILOSOPHY 
)PKINS   UNIVERSITY 


LECTURER   IN   POLITICAL   PHILOSOPHY   IN  THE 
JOHNS  HOPKINS   UNIVERSITY 


MACMILLAN    AND    CO. 

AND   LONDON 

1896 


All  rights  reserved 


^^  f>T      % 


COPYEIGHT,   1896, 

By  MACMILLAN  AND  CO. 


NorfaooU  59rfss 

J.  S.  Cu8hinK&  Co.  — Berwick  &  Smith 
Norwood  Mass.  U.S.A. 


LO  h 


./ 


Eo  jHs  mat 


PEEFACE 

The  aim  of  this  treatise  has  been  the  construction 
of  a  true  system  of  political  philosophy,  the  determina- 
tion of  the  ultimate  nature  of  the  State  and  the  grounds 
upon  which  its  authority  may  be  justified. 

Philosophy  has  been  defined  as  a  criticism  of  cate- 
gories, and  thus,  in  the  present  work,  the  task  has  been 
to  subject  the  principal  terms  and  concepts  of  political 
science  to  as  careful  an  examination,  and  as  rigid  a 
definition,  as  is  possible.  Beyond  all  previous  periods, 
the  present  century  has  been  prolific  in  the  creation  of 
new  and  complex  political  conditions.  With  the  ap- 
pearance of  the  modern  constitutional  State  with  its 
functions  and  organization  reduced  to  definite  written 
statement,  with  the  formation  of  the  greatest  variety  of 
federal  unions  between  States  formerly  independent, 
with  the  rise  of  international  relations  into  technical 
definiteness,  with  the  clearer  distinction  between  public 
and  private  rights,  between  moral  and  civic  obligations, 
—  with  all  these  new  phases  of  political  life,  problems 
in  theory  have  arisen,  which  require  for  their  solution 
the  keenest  of  philosophical  analysis,  and  the  highest 
degree  of  accuracy  in  the  application  of  the  terms  used. 
It  is,  therefore,  with  the  greatest  diffidence  that  the 
present  work  is  offered  as  an  attempt  to  afford  some 
slight  assistance  in   this   direction.      By   no   one   better 


viii  PEEFACE 

than  by  the  author,  is  it  appreciated  that  deficiencies 
may  appear,  and  that  his  work  will  be  subject  to  crit- 
icism from  many  sides.  From  the  nature  of  the  case, 
this  must  be  so,  where,  as  in  the  following  pages,  posi- 
tions have  been  assumed  that  vary  so  widely  from  those 
held  by  other  writers.  It  is  Hobbes,  we  believe,  who 
says,  that  the  axioms  of  geometry  would  be  disputed, 
were  the  interests  of  men  concerned  therewith,  and  if 
this  be  so,  it  cannot  be  a  matter  for  surprise  that  the 
domain  of  political  speculation  should  abound  with 
varieties  of  opinions. 

In  judging  the  value  of  this  work,  it  is  only  asked 
that  it  be  remembered  that  that  which  has  been  at- 
tempted has  been  the  distinction  between  essential  nature 
and  mere  appearance,  the  discrimination  between  the 
legal  and  political  character  of  institutions  and  forces, 
and  their  actual  operation  in  the  arena  of  civic  life. 
Thus,  sovereignty  has  been  distinguished  from  public 
opinion,  the  legal  omnipotence  of  the  State  separated 
from  its  actually  limited  coercive  power,  and  the  non- 
legal  character  of  international  principles  shown  to  be  in- 
dependent of  the  recognition  of  their  obligatory  force  by 
civilized  peoples.  In  several  instances,  the  strict  applica- 
tion of  principles  has  required  a  departure  from  the 
ordinary  use  of  terms.  In  every  such  case,  however, 
it  is  believed  that  the  additional  preciseness  of  nomen- 
clature secured,  has  more  than  compensated  for  the  incon- 
veniences arising  from  such  changes. 

Lying,  as  this  inquiry  does,  within  the  field  of  pure 
political  speculation,  the  introduction  of  historical  or 
descriptive  matter  has  not  been  necessary,  except  for 
purposes    of    explanation    and    illustration.      The    only 


PREFACE  ix 

departures  from  this  have  been  in  the  treatment  of  the 
Composite  State,  where  the  importance  and  complexity 
of  the  subject  seemed  to  demand  a  somewhat  particular 
description,  and  in  the  last  chapter,  where  have  been 
considered  some  of  the  political  tendencies  and  prob- 
lems apparent  in  modern  life.  With  the  Art  of  Gov- 
ernment, or  Politics  properly  so  called,  there  has  likewise 
been  no  concern. 

It  may  be  proper  to  add  that  this  work  is  based 
upon  a  coui'se  of  lectures  given  at  the  Leland  Stanford 
Junior  University,  and  later  at  the  Johns  Hopkins 
University. 

w.  w.  w. 

Washington,  D,C., 
January,  1896. 


TABLE   OF  CONTENTS 


CHAPTER  I 

PAGE 

Introductory:  Scope  of  the  Work 1 


CHAPTER  II 
Prelimikary  Definitions  and  Distinctions        ...        8 

CHAPTER   III 
The  Origin  of  the  State ^^   ~'l 

CHAPTER    IV 

,     The    Origin    op    the    State  (continued);    the    Contract 

Theory .        .54    

CHAPTER  V 
•     Criticism  of  the  Contract  Theory;  Natural  Law  .      89 

CHAPTER  VI 
The  True  Origin  of  the  State   ......    119      (£' 

CHAPTER   Vn 
The  Nature  of  Law 142 

CHAPTER  Vm 

Analytical  Jurisprudence 160 

xi 


Xii  CONTENTS 

CHAPTER    IX 

FAGI 

The  Power  of  the  State:  Sovereignty     ....    181 

CHAPTER  X 
The  Nature  of  the  Composite  State         ....    232 

CHAPTER   XI 

Location  of  Sovereignty  in  the  Body  Politic         .        .    276 

CHAPTER  XII 

^  The  Aims  of  the  State 309 

J- 

CHAPTER  Xni 
Governments  :  their  Classification 351 

CHAPTER  XIV 

Recapitulation  :  Present  Political  Characteristics  and 

Tendencies 380 

Index 441 


J{       .■^(/^^ 


THE  I^ATURE  OF  THE  STATE 

CHAPTER  I 

INTRODUCTORY  :    SCOPE    OP   THE   WORK 

y      The  term  "sociology"   in  its  broadest  meaning 
embraces  the  systematic  treatment  of  all  those  inter- 
ests that  arise  from  the  life  of  men  in  social  aggre- 
gates.    So  considered,  it  includes  within  its  general 
scope  such  particular  branches  of  inquiry  as  Eco- 
nomics, Law,  Politics,  and  the  like.     In  these  special 
departments  of  knowledge,  the  facts  dealt  with  are 
largely  the  same,  the  differences  consisting  in  the 
standpoints  from  which  they  are  viewed.     Thus,  for 
^        example,  the  subject  of  crime  is  of  particular  interest 
1      to  the  economist  as  regards  its  cost  to  society,  the 
I       extent  to  which  it  is  due  to  economic  conditions,  and 
^      the  manner  in  which  it  enters  as  a  disturbing  element 
^       into  economic  life  by  rendering  insecure  the  possession 
of  property.     To  the  lawyer,  the  subject  is  one  of 
importance  as  a  violation  of  law,  and  as  necessitat- 
ing legal  action  for  its  punishment  or  prevention. 
To  the  student  of  Political  Science,  finally,  it  is  of 
interest  as  being  a  revolt  against  the    constituted 
authorities  of  the  land,  as  an  anarchistic  element  m 
the  body  politic,  and,  if  widespread  and  continued, 
endangering  the  very  existence  of  the  State  itself. 


2  THE  NATUEE   OF  THE   STATE 

To  distinguish  then  the  domain  of  Political  Sci- 
ence from  the  larger  field  of  Sociology,  and  from  the 
other  special  departments  of  knowledge  embraced 
therein,  we  say  that  Political  Science  deals  with 
society  solely  from  its  organized  standpoint, — that 
is,  as  effectively  organized  mider  a  supreme  authority 
for  the  maintenance  of  an  orderly  and  progressive 
existence. 

We  thus  distinguish  between  the  conception  of 
an  aggregate  of  men  as  politically  organized  —  as 
constituting  a  body  politic  —  and  the  same  com- 
munity of  men  as  forming  merely  a  group  of  indi- 
viduals with  mutual  economic  and  social  interests. 
^  The  body  politic  is  the  social  body  plus  the  political 
organization.  An  aggregate  of  men  living  together 
and  united  by  mutual  interests  and  relationships  we 
term  a  society.  A  human  "  society  "  is  distinguished 
from  the  types  of  communal  life  exhibited  by  the 
lower  beings,  such  as  bees,  wasps,  and  ants,  in  that 
there  is  in  the  minds  of  its  members  a  common  con-  ^ 
sciousness  of  mutual  interests  and  aims.  "  Human 
society  truly  begins,"  says  Giddings,  "  when  social 
consciousness  and  tradition  are  so  far  developed  ^ 
that  all  social  relations  exist  not  only  objectively  as 
physical  facts  of  association,  but  subjectively  also,  in 
the  thought,  feeling,  and  purpose  of  the  associated 
individuals.  It  is  this  subjective  fact  that  differen- 
tiates human  from  animal  communities."  ^  "  In  its 
social  consciousness  a  community  has  a  living  bond 

*  The  Theory  of  Sociology.  Supplement  to  the  Annals  of  the  Am. 
Acad.  Pol.  and  Soc.  Sci.,  July,  1894,  p.  60. 


INTKODUCTORY:   SCOPE   OF  THE   WORK  3 

of  union.  The  mutual  aid  and  protection  of  indi- 
viduals, operating  in  an  unconscious  way,  are  no 
longer  the  only  means  that  preserve  social  cohesion : 
the  community  feels  and  perceives  its  unity.  The 
feeling  must  be  destroyed  before  rupture  can  occur."  ^ 
X  When  this  society  becomes  organized  for  the 
effectuation  of  certain  general,  or,  as  they  are  called, 
political  interests,  and  with  a  magistracy  into  whose 
hands  is  entrusted  the  exercise  of  its  controlling 
authority,  it  assumes  a  political  form,  and  a  State 
is  said  to  exist ;  and  the  rules  defining  the  contents 
of  this  authority  and  the  manner  of  its  exercise 
are  collectively  termed  its  constitution.  As  a  pre- 
liminary definition  of  the  State,  we  may  therefore 
say  that  wherever  there  can  be  discovered  in  any 
coinTPuuity  of  men  a  supreme  authority  exercising 
a  control  over  the  social  actions  of  individuals  and 
groups  of  individuals,  and  itself  subject  to  no  such 
regulation,  there  we  have  a  State.  The  definition 
given  by  Holland  is  that :  "  A  State  is  a  numerous 
assemblage  of  human  beings  generally  occupying  a 
certain  territory  amongst  whom  the  will  of  the 
majority,  or  of  an  ascertainable  class  of  persons,  is, 
by  the  strength  of  such  a  majority  or  class,  made  to 
prevail  against  any  of  their  number  who  oppose  it."  ^ 

^  Idem,  p.  57. 

2  Elements  of  Jurisprudence,  6th  ed.  p.  40.  Notice  that  the  terri- 
torial element  is  not  made  essential,  but  is  prefaced  by  the  word 
"generally."  Bluntschli,  however,  makes  land  a  necessary  element, 
and  defines  the  State  as  "the  politically  organized  national  person  of 
a  definite  country"  {Theory  of  the  State,  trans.  2d  ed.  p.  23).  Upon 
this  point,  see  post,  p.  27. 


•^ 


4  THE   NATUKE   OF  THE   STATE 

Ihering  defines  the  State  as  "  the  form  of  a  regulated 
and  assured  exercise  of  tlie  compulsory  force  of 
society."  ^  According  to  Lasson,  "  the  State  is  a 
community  of  men  which  possesses  an  organized 
authority  as  the  highest  source  of  all  force ; "  ^  while 
Burgess  describes  it  less  specifically  as :  "A  par- 
ticular portion  of  mankind  viewed  as  an  organized 
unit."^ 

Without,  however,  further  multiplying  these  defi- 
nitions, or  more  particularly  explaining  them,  we 
may,  at  this  preliminary  stage,  declare  the  essential 
elements  of  a  State  to  be  three  in  number.    They  are  : 

(1)  A  community  of  people  socially  united. 

(2)  A  political  machinery,  termed  a  government, 
and  administered  by  a  corps  of  officials  termed  a 
magistracy. 

(3)  A  body  of  rules  or  maxims,  written  or 
unwritten,  determining  the  scope  of  this  public 
authority  and  the  manner  of  its  exercise-^ 

Just  as  the  sciences  of  Economics  and  Jurispru- 
dence may  be  further  separated  into  distinct  depart- 
ments of  inquiry,  so  does  the  domain  of  Political 
Science  admit  of  further  subdivision.  Thus  we  may 
have:  First,  Descriptive  Political  Science,  dealing 
with  a  description  of  the  various  forms  of  political 
organization;  secondly.  Historical  Political  Science, 
dealing  with  the  inquiry  as  to  the  manner  and  order 
in  which  political  forms  or  governments  have  appeared 

1  Der  ZwecTc  im  RecJit,  I.  p.  307. 

2  System  der  Rechtsphilosophie,  p.  283. 

8  Political  Science  and  Constitutional  Law,  Vol.  I.  p.  51. 


INTRODUCTORY:   SCOPE   OF  THE   WORK  5 

and  developed  ;  thirdly,  the  Art  of  Government,  or 
"Politics"  properly  so  called,  dealing  with  the  prin- 
ciples that  should  properly  control  the  administra- 
tion of  public  affairs;  finally,  Political  Theory  or 
Philosophy,  concerned  with  the  philosophical  exam- 
ination of  the  various  concepts  upon  which  the  whole 
science  of  politics  rests. 

It  is  wholly  within  the  confines  of  this  last-named 
field  that  the  present  treatise  will  lie.  But  even 
here,  further  subdivision  suggests  itself.  First  of 
all.  Political  Theory  may  be  either  particular  or 
general ;  that  is,  as  devoted  to  the  theoretical  ex- 
planation of  the  nature  of  particular  political  types, 
or  as  occupied  with  the  deduction  of  principles  of 
universal  applicability.  Again,  the  History  of  Polit- 
ical Theories  may  properly  be  held  to  constitute  a 
distinct  field  of  inquiry. 

In  this  treatise  we  shall  be  concerned  with  the 
general  postulates  of  Political  Science,  and  incident- 
ally with  the  History  of  Political  Theories.  History 
gives  us,  as  it  were,  the  third  dimension  to  Political 
Science,  and  it  will  frequently  be  the  case  that  we 
shall  be  very  greatly  aided  in  arriving  at  the  proper 
comprehension  of  the  principles  with  which  we  are 
engaged  by  a  comparative  study  of  the  varying 
aspects  in  which  they  have  been  viewed  at  differ- 
ent times  by  different  writers,  and  an  examination 
of  the  extent  to  which  the  diverging  views  have  been 
dependent  upon  the  dissimilar  political  conditions  by 
which  their  respective  expounders  have  been  sur- 
rounded. 


6  THE  NATURE   OF  THE   STATE 

The  task  that  we  have  assigned  ourselves  in 
attempting  to  determine  the  exact  nature  of  the 
State,  will  be  by  no  means  an  easy  one,  for  here,  as 
in  all  branches  of  speculative  inquiry,  there  will 
be  required  the  clearest  conception  of,  and  the  most 
rio-id  adherence  to,  the  connotations  of  the  terms 
used.  A  further  difficulty,  and  one  not  inherent  in 
the  task,  is  the  fact  that  it  will  be  necessary  to  use 
words  to  which  common  usage  has  attached  very 
general  and  therefore  vague  and  overlapping  signifi- 
cations. In  this  particular  we  shall  be  in  much  the 
same  situation  as  are  political  economists  who  are 
still  struggling  to  obtain  generally  acceptable  and 
precise  definitions  of  their  most  important  terms, 
such  as  "  value,"  "  rent,"  "  capital,"  and  "  wealth." 

The  conception  of  tlie_._St.ata  which^we  are  to  ob- 
tain,  if  it  is  to  be_saiJ£fa£toiyj_m^^  be  one  that  will 
disclose  its  ultimate  nature,  including  tlifireia-a-suf:^ 
ficient  reason  for  its  existence,  and  an  adequate  jus_tifir_ 
cation  of  the  right  by  which  it  exercises  its  authority. 
It  must  contain  a  statement  of  the  attributes  with 
which  a  State  is  necessarily  endowed,  and  by  the 
possession  of  which  it  may  be  distinguished  from 
other  corporations.  It  will  thus  afford  us  a  general 
type  rather  than  an  empirical  illustration.  The  origin 
of  political  authority,  so  far  as  it  can  be  rationally 
determined,  must  receive  satisfactory  treatment ;  and 
the  nature  and  location  of  sovereignty  considered. 
Furthermore,  the  conception  must  be  one  upon  which 
we  can  base  a  true  philosophy  of  law,  and  in  accord- 
ance with  which  may  be  satisfactorily  interpreted 


INTRODUCTORY:  SCOPE  OF  THE  WORK         7 

the  nature  of  the  reLations  between  different  States, 
and  between  particular  States  and  the  individuals 
composing  them. 

It  will  thus  happen  that  in  the  consideration   of 
the  various  theories  that  have  been  held  by  political 
philosophers  in  the  past,  there  will  not  be  mentioned 
many  of  those  whose  names  would  properly  appear 
in  a  general  history  of  Political  Science.     Only  those 
will  be  here  referred  to  who  have  contributed  by 
their  writings  to  the  development  of  the  idea  of  the 
State  as  distinct  from  its  organization  or  good  ad- 
ministration.    Thus,    for   example,  the  writings   of 
Aristotle,  Machiavelli,  Montesquieu,  and  Sidgwick, 
which   are   devoted  to  the  science  of   politics,  will 
need  comparatively  scant   mention.     Nor   shall  we 
find  it  necessary  to  consider  the  works  of  that  large 
body   of   writers  who  have  devoted  their  attention 
either  to  the  description  of  governmental  forms  or  to 
the  analysis  of  particular  political  types.    During  the 
Middle  Ages,  and  indeed  reaching  well  up  into  modern 
times,  the  relation  between  Church  and  State  was 
the  pivotal  point  around  which  political  controversies 
raged.     In  all  the  writings  which   these   struggles 
engendered  theological  dogma  played  an  important 
part,   and  we   shall  find  this  literature  of   interest 
to  us  only  in  so  far  as  doctrines  of  a  general  nature 
were  evolved. 


CHAPTER  II 

PRELIMINAET   DEFINITIONS   AND   DISTINCTIONS 

*' State"  and  ** Government." — The  first  funda- 
mental distinction  that  must  be  made,  is  that  be- 
tween "State"  and  "Government/^  By  the  term 
"  Qovernment "  is  designated  the  organization  of 
the  State,  —  the  machinery  through  which  its  pur- 
poses are  formulated  and  executed.  Thus,  as  we 
shall  see,  while  the  term_,'^iS±atfi "  is,  when  strictly 
considered,  an  abstract  term,  Government  is  em- 
phatically  concrete.  More  than  that.  Government  is 
purely  mechanical  and  governed  by  no  general  laws. 
Its  varying  forms  are  in  all  cases  determined  by 
political  expediency,  and  the  examination  of  its 
essential  character  involves  no  such  philosophical 
considerations  as  will  interest  us  in  our  present 
inquiry .  The  subj  ect  of  Government  thus  lies  almost 
wholly  without  the  field  of  Political  Theory,  and  is 
comprehended  within  the  domains  of  descriptive  and 
historical  politics. 

Simple  and  definite  as  is  this  distinction  between 
the  State  and  its  governmental  machinery  (corre- 
sponding as  it  does  very  much  to  the  distinction  be- 
tween a  given  person  and  the  material  bodily  frame 
in  which  such  person  is  organized),  we  shall  find  it 
to  be  one  that  has  been  but  seldom  made.     In  fact, 

8 


y 


PRELIMINARY  DEFINITIONS   AND   DISTINCTIONS  9 

it  has  been  the  confusion  between  these  two  terms 
that  has  led  directly  or  indirectly  to  a  great  major- 
ity of  the  erroneous  results  reached  by  political 
philosophers  in  the  past. 

*'  Nation  "  and  "  People."  —  From  the  terms  "  Na- 
tion" and  "People"  the  State  is  likewise  to  be 
dissociated. 

In  the  use  of  the  two  former  terms  the  greatest 
confusion  exists.  In  Germany  the  word  "  People  " 
( Volk)  has  primarily  and  predominantly  a  political 
signification,  as  denoting  a  body  of  individuals  organ- 
ized under  a  single  government ;  while  the  term 
"  Nation  "  [Nation)  is  reserved  for  a  collection  of  in- 
dividuals united  by  ethnic  or  other  bonds,  irrespective 
of  political  combination.  According  to  this  use  "a 
Nation  is  an  aggregate  of  men  speaking  the  same 
language,  having  the  same  customs,  and  endowed 
with  certain  moral  qualities  which  distinguish  them 
from  all  other  groups  of  like  nature.  .  .  .  All 
people  living  under  the  same  Government  compose 
the  '  People '  of  the  State.  In  relation  to  the  State, 
the  Citizens  constitute  the  People ;  in  relation  to  the 
human  race,  they  constitute  the  Nation."  ^ 

^  Helie,  in  Lalor's  Encyclopaedia  of  Political  Science,  Vol.  11.  p.  923. 
Attention  may  also  be  called  to  the  fact  that  the  English  word  "  gov- 
ernment" is  of  wider  meaning  than  the  German  term  Regierung, 
which  excludes  the  function  of  legislation,  and  frequently  has  no 
wider  signification  than  that  conveyed  by  our  word  "  administration." 
The  Germans  have,  however,  a  narrower  term  Verwaltung,  which  has 
especial  reference  to  the  details  of  executive  action.  Cf.  Sarwey, 
Allgemeines  Verwaltungsrecht,  pp.  93,  94  (Marquardsen's  Handbuch  des 
Oeffentlichen  Reclits  der  Gegemvart).  See  post.,  for  the  special  use  of 
the  term  "government"  by  Burgess. 


10  THE    NATURE    OF   THE   STATE 

As  opposed  to  this  usage,  American  and  English 
publicists  are  wont  to  give  to  "  Nation  "  the  political 
meaning,  and  to  signify  by  the  word  "  People  "  an 
aggregate  of  men  united  by  other  than  political 
bonds.  Thus,  as  Bluntschli  says  in  his  Theory  of 
the  State :  "  In  English  the  word  '  People '  and  the 
French  '  Peuple '  implies  the  notion  of  a  civilization 
which  the  Germans  (like  the  old  Romans  in  the 
word  '  J^atio')  expressed  by  'Nation.'  The  political 
idea  is  expressed  in  English  by  '  Nation '  and  in 
German  by  'VolJc.'  Etymology  is  in  favor  of  Ger- 
man usage ;  for  the  word  '  Natio '  (from  Nasci) 
points  to  birth  and  race,  Volk  and  popidus  rather  to 
the  public  life  of  a  State  (770X19)."^ 

At  the  same  time,  however,  the  English  are  not 
always  consistent  in  making  the  use  of  these  words 
the  converse  of  that  of  the  Germans.  Commenting 
upon  this  paragraph  of  Bluntschli  which  we  have 
cited,  his  translators  say :  "  It  will  be  found  that 
he  goes  too  far  in  supposing  our  use  to  be  the 
exact  converse  of  the  German.  The  fact  is,  our 
word  'People,'  though  often  less  political  in  its  sig- 
nification than  Volk,  is  more  political  than  the  Ger- 
man word  Nation.  Thus  we  must  translate  '  VolJcs- 
vertretung '  by  '  representation  of  the  people,'  and 
we  can  only  render  Popiilus  Romanus  by  '  the 
Roman  people.' "  ^  They  might  also  have  added 
that  the  same  indefiniteness  surrounds  the  use  of 
the  word  "Nation."  For  example,  in  the  phrase 
"  rights  of  nationality,"  there  is  the  obvious  postu- 

1  Trans.  2d  ed.  p.  86.  2  Idem,  p.  vii. 


PRELIMINARY   DEFINITIONS   AND   DISTINCTIONS.       H 

late    that    nationality   is    nowise    coterminous   with 
political  boundaries.   . 

Notwithstanding,  however,  the  confusion  that  thus 
exists  in  the  English  use  of  these  terms,  the  trans- 
lators of  Bluntschli  have  seen  fit  to  translate  wher- 
ever possible  the  German  word  Yolk  by  "Nation," 
and  Nation  by  the  English  word  "People."  In  this 
it  would  seem  to  the  writer  they  have  been  unwise. 
The  mere  fact  that  they  could  not  follow  this  rule 
in  all  cases  condemns  it.  It  would  have  been  far 
better  to  have  followed  the  German  usage,  and  thus 
to  have  obtained,  if  not  a  perfect,  at  least  a  more 
definite  and  precise  nomenclature.  We  shall  there- 
fore in  the  following  pages  denote  by  "  PeopleJ'  an 
agrgnreg;ate  of  men  livingLjinder  a  single  political. con- 
trol. The  term  "  Nation  "  will  be  reserved  for__the 
more  general  and  abstract  use.  That_which  welds  a 
body  of  individuals  intQ.SL..na-tianal.-lluity  is  no  rigid 
political  controlj  but  ethnic, and 
sentimental  or  psychological  in  character. 

Now  when  we  say  that  it  is  these  influences  of 
race,  religion,  custom,  _  language,  and  history  that 
create  a  Nation,  we  mean  that  from  these  sources 
spring  the  feeling  or  sentiment,  that  binds  together 
a  commumty—oi-  people.v_and__constitutes  from  them 
a  Nation.  Each  of  these  factors  invites  the  forma- 
tion of  a  Nation,  but  no  one  of  them  compels  it. 
The  essential  principle  is  the  feeling  that  is  the  re- 
sult of  one  or  more  of  these  factors.  Thus,  as  says 
Eenan  :  "  A  Nation  is  a  spiritual  principle,  resulting 
from  the  profound  complications  of  history ;  a  spirit- 


12  THE  NATURE  OF  THE  STATE 

iial  family,  not  a  group  determined  by  the  configura- 
tion of  the  soil.  ...  A  Nation  is,  then,  a  great 
solidarity  constituted  by  the  sentiment  of  the  sacri- 
fices that  have  been  made,  and  by  those  which  the 
people  are  disposed  to  make.  It  supposes  a  past ;  it 
is,  however,  summed  up  in  the  present  by  a  tangible 
fact :  the  consent,  the  clearly  expressed  desire  of  con- 
tinuing the  common  life.  The  existence  of  a  Nation 
is  (if  the  metaphor  be  permissible)  a  continued  plehis- 
citum,  as  the  existence  of  the  individual  is  a  perpetual 
affirmation  of  life."^  According  to  Mill,  "a  portion 
of  mankind  may  be  said  to  constitute  a  nationality  if 
they  are  united  among  themselves  by  common  sym- 
pathies which  do  not  exist  between  them  and  others 
—  which  make  them  co-operate  with  each  other  more 
willingly  than  with  other  people,  desire  to  be  under 
the  same  government,  and  desire  that  it  should  be 
government  by  themselves,  or  a  portion  of  them- 
selves, exclusively."^ 

The  tendency  of  course  is,  as  indicated  in  Mill's 
definition,  for  Nations  to  constitute  themselves  as 
individual  States,  and  it  may  be  said  that  this 
demand  for  political  unity  constitutes  the  surest 
index  to  the  existence  of  a  national  feeling.  Hence, 
most  publicists  see  in  the  national  State  the  most 
perfect  type  of  political  development  thus  far  at- 
tained. 

The  advancing  enlightenment  of  the  masses  has 
been   instrumental   in   creating  the  true  feeling  of 

^  Article  Nation  in  Lalor's  Ency.  Pol.  Sci. 
2  Representative  Government,  Chap.  XVI. 


PRELIMINAKY   DEFmiTIONS   AND   DISTINCTIONS         13 

nationality,  that  is  to  say,  a  demand  for  unity  based 
upon  some  other  ground  than  mere  coercive  political 
control ;  and  the  present  century  has  seen  the  enor- 
mous influence  that  this  principle  has  had  in  reform- 
ing the  political  map  of  Europe.  At  the  same  time 
the  point  may  be  made  that  it  is  not  too  much  to 
expect  that  this  same  spirit  of  enlightenment  that 
has  thus  given  rise  to  this  demand  for  a  re-demarka- 
tion  of  political  boundaries  will,  in  turn,  as  civiliza- 
tion continues  to  advance,  make  this  demand  less 
imperative.  And  for  this  reason :  While  at  first 
the  enlightenment  of  the  masses  creates  in  them 
^^a  consciousness  of  their  own  individuality  and  soli- 
darity, and  thus  a  national  feeling ;  at  the  same 
time,  as  the  culture  of  the  people  increases,  their 
sympathies  become  more  cosmopolitan,  and  their 
appreciation  of  the  true  unity  of  all  humanity  more 
real.  Ethnic,  lingual,  and  even  political  unity  will 
thus  exercise  comparatively  less  and  less  influence 
as  Nations  find  themselves  drawn  into  a  higher 
and  more  intellectual  union.  At  the  same  time, 
also,  ecOTiomic^  iaterests  will  tend  more  and  more 
to  cross  national  and  political  boundaries,  and  thus 
unite  with  increasing  closeness  the  material  inter- 
ests of  different  Peoples. 

It  may  thus  be  entirely  possible  that  the  spirit  of 
nationality  at  present  so  active  in  politics  will  prove 
to  be  a  phase  of  civilization  rather  than  a  permanent 
product ;  and  that  while  the  realization  of  a  true 
World-State  may  never  be  possible,  we  may  yet 
look   forward   to  a  growth  of   internationality   [sit 


14  THE  NATURE   OF   THE   STATE 

venia  verho)  that  will  largely  deprive  the  feeling  of 
nationality  of  its  present  force.^ 

State  Abstractly  Considered  [Staatsidee).  —  Finally, 
as  recognized  by  most  modern  publicists,  and  as 
already  indicated,  a  distinction  is  to  be  made  between 
the  abstract  idea  of  the  StS^te  and  its  empiric  concep- 
tion. The  one  is  the  result  of  abstract  speculation, 
the  other  of  concrete  thinking.  The  first  is  what 
the  Germans  designate  "  Staatsidee,"  being  the  Jxiea 
of  the  State  in_^s_most_general  form.  It  is  that 
idea  which  epabraces  all  that  is  essential  to,  and 
which  is  possessed  by  all  types  of  State  life.  It 
is  the  State  reduced^to  its  lowest  terms.  The  em- 
piric conception,  on  the  other  hand,  is  particular, 
and  has  reference  to_  special  civic  types  as  histor- 
ically manifested. 

The  State  is  _  an„a.lmost  universal  phenomenon. 
Everywhere,  and  in  all  times,  we  find  men,  as  soon 
as  their  social  life  begins,  submitting  to  the  control 
of  a  public  authority  exercising  its  powers  through 
an  organization  termed  Government.  In  no  tivo 
instances  do  we  find  the  character  or  scope  of  this 
public  authority  identical  or  exercising  its  functions 
through  precisely  similar  governmental  organizations. 
We  recognize,  however,  that  no  matter  how  organized, 
or  in  what  manner  their  joowers  be  exercised,  there 
is  in  all  S_tates  a  substantial  identity  of  purpose ;  and 
that  underneath  all  the^e.  concrete  appearances  there 

1  Upon  this  question  of  Nationality,  vide  Bluntschli,  Theory  of  the 
Slate,  trans.  2d  ed.  Bk.  II. ;  de  Laveleye,  Le  GouDernemenl  dans  la 
Democralie,  Vol.  I.  pp.  52-63 ;  and  Burgess,  Pol.  ScL  and  Const.  Lata, 
Vol.  I.  Bk.  I. 


PRELIMmARY  DEFINITIONS  AND  DISTINCTIONS         15 

is  to  be  found  a  siibstantial  likeness  in  nature.  If 
now  we  disregard  all  non-essential  elements,  and 
overlook  inconsequential  modifications,  we  shall  be 
able  to  obtain  those  elements  that  appear  in  a//  types 
of  State  life,  whether  organized  in  the  monarchical 
or  republican,  the  despotic  or  limited,  the  federal  or 
unitary  form.  We  sHair'thus  discover  those  charac- 
teristics' that  are  of  the  very  essence  of  the  State's 
life,  and  which  unfailingly  distinguish  it  from  other 
public  bodies. 

All  concrete  instances  of  State  that  are  histori- 
cally afforded  us,  are  to  be  considered  as  embodying 
the  Staatsidee  as  their  principal  essence.  Variations 
in  governmental  organizations  and  adminstration 
are  to  be  considered  as  merely  differences  in  form  L^ 
that  have  arisen  in  response  to  demands  of  time,-  I 
place,  and  peculiarities  of  political  temperament  of 
the  people,  but  without  disturbing  the  State's  funda- 
mental nature. 

With  this  abstract,  general  conception  of  the  State 
in  our  minds,  we  will  be  furnished  with  the  crite- 
rion for  distinguishing  between  mere  variations  and 
anomalous  formations  of  civic  life,  and  those  public 
bodies  that  resemble,  but  do  not  possess  this  essen- 
tial element,  and  are  therefore  not  to  be  dignified 
with  the  title  State. 

It  is  to  be  observed,  however,  that  this  abstract 
conception  of  the  State  for  which  we  seek,  does  not 
exactly  correspond  with  the  meaning  given  to  the 
term  Staatsidee  by  some  writers.  Thus,  for  example, 
Brie  in  his  "  Theorie  der  Staatenverlindungen  "  uses 


*'  .^ 


16  THE  NATURE  OF  THE  STATE 

the  term  to  express  the  ideally  perfect  State ;  that 
is,  one  possessing  and  itself  directly  exercising  all 
the  powers  that  properly  belong  to  a  State,  rather 
than  the  general  or  universal  idea  of  the  State  as 
we  have  above  described  it.  For  instance,  he  says : 
"Concrete  States  are  ever  more  or  less  incomplete 
pictures  of  the  Staatsidee,  in  that  they  do  not  possess 
and  in  themselves  exercise  all  the  powers  that  logi- 
cally belong  to  them."^  Professor  Burgess  likewise 
in  his  recent  work  makes  a  distinction  between 
what  he  calls  the  "  Idea  "  and  the  "  Concept "  of 
the  State.  Thus  he  says  :  "  The  idea  of  the  State  is 
the  State  perfect  and  complete.  The  concept  of  the 
State  is  the  State  developing  and  approaching  per- 
fection. From  the  standpoint  of  the  idea,  the  State 
is  mankind  viewed  as  an  organized  unit.  From  the 
standpoint  of  the  concept,  it  is  a  particular  portion  of 
mankind  viewed  as  an  organized  unit.  From  the 
standpoint  of  the  idea  the  territorial  basis  of  the 
State  is  the  world,  and  the  principle  of  unity  is 
humanity.  From  the  standpoint  of  the  concept, 
again,  the  territorial  basis  of  the  State  is  a  particular 
portion  of  the  earth's  surface,  and  the  principle  of 
uriity  is  that  particular  phase  of  human  nature  and 
of  human  need,  which,  at  any  particular  stage  in  the 
development  of  that  nature,  is  predominant  and  com- 
manding. The  former  is  the  real  State  of  the  per- 
fect future.  The  latter  is  the  real  State  of  the  past, 
the  present,  and  the  imperfect  future."  ^ 


y  1  p.  7. 

2  Pol.  Sci.  and  Comt.  Law,  Vol.  T.  pp.  49,  50. 


PRELIMINARY   DEFINITIONS   AND   DISTINCTIONS         17 

It  is  obvious  that  in  the  above,  the  distinction  is 
not  between  the  general  or  abstract  conception  of 
the  State  and  its  empiric  manifestation.  Not  only 
this,  but  it  would  seem  to  the  writer  that  there  is  an 
improper  use  of  terms  and  a  distinction  attempted 
that  may  not  properly  be  drawn.  A  given  ruling 
organization  either  embodies  and  expresses  the  will 
of  the  State,  or  does  not ;  but  in  no  case  can  two  or 
more  States  be  spoken  of  as  differing  in  degrees  of 
perfection.  States  may  differ  as  to  the  good  or  bad 
qualities  of  the  governmental  machinery  in  which 
they  are  organized  and  through  which  their  wdlls 
find  expression,  but  they  themselves  do  not  admit  of 
coinparative  degrees  of  excellence.  In  other  words, 
there  can  be  no  such  thing  as  an  imperfect  State, 
and  to  maintain  that  there  can  be  is  only  to  con- 
found again  the  ideas  of  State  and  Government. 
Professor  Burgess  himself  sees  the  necessity  of  tak- 
ing this  ground  when  he  comes  to  deal  with  the 
nature  of  the  so-called  non-sovereign  State. ^ 

1  In  his  review  of  Laband's  Staatsrecht  des  Deutschen  Retches,  Pol. 
Sci.  Quar.,  Vol.  III.  p.  128.  ^  _  />>/"/ 


J^ 


CHAPTER   III 

THE    ORIGIN   OF   THE   STATE 

In"  considering  the  origin  of  the  State  we  shall  be 
necessarily  led  into  a  much  wider  discussion  of  the 
nature  of  the  State  than  this  title  would  indicate. 
We  shall  find  ourselves  carried,  indeed,  almost 
directly  into  the  heart  of  the  subject  to  which  this 
treatise  is  devoted ;  namely,  to  a  general  exami- 
nation  of  the  nature-  .and  justification  of  political 
authority:.  It  is  of  course"^  needless  to'T^epe at  that 
in  this  chapter  we  shall  be  concerned  with  political 
authority  in  general,  and,  therefore,  with  no  refer- 
ence to  the  manner  in  which  it  may  have  been 
empirically  manifested  in  the  course  of  the  world's 
history. 

(A)    The    Origin   of  the   State  from   the  Historical 
Standj)oint 

Concerning  the  absolute  origin  of  political  au- 
thority among  men,  history  does  not  afford  definite 
information,  nor  does  it  appear  possible  that  there 
will  ever  be  furnished  final  light  upon  this  subject. 
A  study  of  origins  is  always  an  attractive  one,  and 
the  work  of  many  anthropologists  has  thrown  a  vast 
amount  of   light   upon  the  early  history  of   social 

and  political  institutions.     The  parts  played  by  con- 
is 


THE   ORIGIN   OF   THE   STATE  19 

sanguinity,  by  religion  (especially  by  the  worship 
of  ancestors),  by  the  communal  ownership  of  land 
and  other  economic  interests,  and,  above  all,  by  the 
influence  of  the  family  upon  the  development  of  social 
and  political  life,  have  been  carefully  considered. 
The  significance  of  totem  worship,  of  endogamy  and 
exogamy,  of  polygamy,  of  polyandry,  and  of  patri- 
archal life  has  been  discussed  in  the  lidit  of  the 
facts  2^1'esented  by  the  earliest  literary  and  archeo- 
logical  records,  and  interpreted  by  analogy  with  the 
present  customs  of  races  now  in  the  lowest  stages  of 
civilization.  All  of  these  facts  have  been  compared 
and  exhaustively  studied,  but  the  absolute  origin  of 
civic  life  has  not  been  historically  determined.  The 
fact  is,  that  the  first  _guhjection  of  man  to  public 
authority,  of  some  sort  or  other,  was  practically  and 
necessarily  coeval  with  the  beginning  of  ,,h.is  social 
life,  and  this  carries  us  back  to  periods  of  human 
development  anterior  to  those  that  furnish  histor- 
i^IJrecords. 

The  most^j)rominent  of  the  theories  regarding  the 
origin  of  political  institutions  that  pretend  to  rest 
upon  historical  data,  is  the  so-called  '-'Patriarchal 
Theory,"  represented  by  the  name  of  _Sir  Henry 
Maine  as  its  propounder  and  chief  advocate.  "  The 
patriarchal  theory  of  society,"  to  use  Maine's  own 
words,  "  is  the  theory  of  its  origin  in  separate  fami- 
lies, held  together  by  the  authority  and  protection  of 
the  eldest  valid  male  ascendant."       —    -•  ■ 

Opposing  the  Patriarchal  Theory  is  that  of  Mor- 
gan and  McClennan,  accordino^_to_whoni  social  life 


20  THE  NATURE  OF  THE  STATE 

may  be  traced  from  the  horde,  or  a  condition 
of  absolute  promiscuity  in  sexual  relations,  from 
which,  through  various  restrictions,  the  monogamous 
family  and  patriarchal  State  were  subsequently 
reached. 

Concerning  these  theories  it  may  be  said  at  once 
that  they  are  social  rather  than  political  hypotheses. 
It  is  common  to  speak  of  the  body  politic  as  a  devel- 
opment from  the  family  and  the  State  as  the  family 
"  writ  large."  Thjs^howeyer,  we  conceive  to  be  an 
error.  It  may,  indeed,  be  true  that  in  the  earliest 
stages  of  political  development,  the  family  was  such 
an  all-important  group  that  its  interests  dictated  to 
a  very  great  extent  political  action  ;  that  the  father's 
authority  was  utilized  for  the  enforcement  of  most 
of  the  then  rules  of  conduct ;  and  that,  indeed,  such 
authority  of  the  father  and  the  family  organization 
suggested  the  establishment  and  manner  of  organiza- 
tion of  the  primitive  State;  —  but  admitting  this, 
it  would  not  be  true  to  say  that  the  State  develojoed 
out  of  this  small  social  imit.  The  two  institutions 
are  different  in  essence.  In  the  family  the  location 
of  authority  is  natural  {i.e.  in  the  father).  In^  the 
State  it  is  one  of  choice.  Subordination  is  the  prin- 
ciple of  the  family ;  equality  that  of  the  State.  Fur- 
thermore, the  functions  or  aims  of  the  State  are  es- 
sentially different  from,  and  often  even  contradictory 
to,  those  of  the  family.  It  is  only  by  the  necessa- 
rily primitive  character  of  the  patriarchal  authority, 
and  the  extent  to  which  the  State  in  its  early  period 
of  development  recognized  this  power  of  the  father, 


THE  ORIGm  OF  THE   STATE  21 

and  utilized  his  authority  for  the  obtaining  of  many 
of  its  aims,  that  countenance  is  given  to  the  idea 
that  the^^^Stafe  developed  from  the  family^  So  dis- 
similar arc  tlic  auns  of  the  two  institutions;^ that  one 
could  not  have  owed  its  origin  to  the  other.  The 
faniily  ne\  rr  was  and  never  can  become  a  subject  of 
public  law.     Its  interests  are  necessarily  private. 

Thus,  as  says  Bentham :  "  It  is  true  that  every 
person  must,  for  some  time  at  least  after  his  birth, 
necessarily  be  in  a  state  of  subjection  with  respect  to 
his  parents,  or  those  who  stand  in  the  place  of  par- 
ents to  him ;  and  that  a  perfect  one,  or  at  least  as 
near  to  being  a  perfect  one  as  any  that  we  can  see. 
But  for  all  this,  the  sort  of  society  that  is  constituted 
by  a  state  of  subjection  thus  circumstanced,  does  not 
come  up  to  the  idea  that,  I  believe,  is  generally  enter- 
tained by  those  who  speak  of  ^  political  society.  To 
constitute  what  is  meant  in  general  by  that  phrase,  a 
greater  number  of  members  is  required,  or,  at  least, 
a  duration  capable  of  a  longer  continuance.  Indeed, 
for  this  purpose  nothing  less,  I  take  it,  than  an  in- 
definite duration  is  required.  A  society,  to  come 
within  the  notion  of  what  is  originally  meant^iy^  a 
political  one,  must  be  such  as,  in  its  nature,.-is-  Jiot 
incapable  of  continuing  forever  in  vix.tue-o£  the  pr4«ei- 
ples  which  gave  it  birth,  This,  it  is  plain,  is  not  the 
case  with  such  a  family  society,  of  which  a  parent, 
or  a  pair  of  parents,  are  at  the  head.  In  such  a 
society,  the  only  principle  of  union  which  is  certain 
and  uniform  in  its  operation  is  the  natural  weakness 
of  those  of  its  members  that  are  in  a  state  of  sub- 


f 


22  THE  NATUKE   OF  THE   STATE 

jection  ;  that  is,  the  children ;  a  principle  which  has 
but  a  short  and  limited  continuance.  I  question 
whether  it  be  the  case,  even  with  a  family  society, 
subsisting  in  virtue  of  collateral  consanguinity ;  and 
that  for  the  like  reason.  Not  but  that  even  in  this 
case  a  habit  of  obedience,  as  perfect  as  any  we  see 
examples  of,  may  subsist  for  a  time  ;  to  wit,  in  virtue 
of  the  same  moral  principles  which  may  protract  a 
habit  of  filial  obedience  beyond  the  continuance  of 
the  physical  ones  which  gave  birth  to  it :  I  mean 
affection,  gratitude,  awe,  the  force  of  habit,  and  the 
like.  But  it  is  not  long,  even  in  this  case,  before  the 
bond  of  connection  must  either  become  impercepti- 
ble, or  lose  its  influence  by  being  too  extended."  ^ 

The  lucidity  with  which  the  above  distinction  is 
drawn  will  excuse  the  extended  quotation  that  is 
given.  It  will  be  noticed  that  the  einphasis  is  prop- 
erly laid  upon  the  inherent  possibility  of  indefinite 
continuance  as  "the  criterion  of  political  power.  At 
the  same  time,  Bentham  mentions^  though  he  does 
not  dwell  upon,  the  question  of  size ;  holding  the 
fewness  in  numbers  of  the  family  to  disqualify  it  as 
a  political  society^ 

This  raises  an  interesting  question  as  to  what 
minimum  limitation,  if  any,  should  be  placed  upon 
the  number  of  citizens  necessary  to  constitute  a  State. 
To  our  mind  no  minimum  (short  of  one)  can  logi- 
cally be  placed.  As  our  argument  proceeds,  it  will 
appear  that  none  of  the  essential  elements  of  the 
State  are  such  as  cannot  conceivably  be  predicated 

1  Fragment  on  Gocernment.     Ed.  by  Montague,  1891,  p.  110  n. 


THE   ORIGIN  OF  THE   STATE  23 

as  well  of  a  small  as  of  a  large  body  of  individuals. 
Aristotle  would  fix  a  limit  below  wbicli  tlie  num- 
ber of  citizens  sbould  not  go,  but  tins,  it  will  be 
found,  is  based,  not  so  much  upon  logical  grounds  as 
upon  the  utilitarianjprinciple  that . ia  a-community  too 
small  there  is  not  the  possibility  of  that  varied  life 
which  is  essential  to  the  true  aim  which  the  State 
should  strive  to  attain.  Austin  denies  the  possibility 
of  a  State  being  constituted  from  a  .-single  -family, 
upon"Tlie~ground  of  its  absurdity,  and  ^quotes  Montes- 
quieu as  taking  the  same  position.^  After  admit- 
ting that  a  single  family  living  in  total  estrangement 
from  every  other  community  might  exhibit  all  the 
traits  of  an  independent  political  society,  Austin, 
however,  says :  "  But,  since  the  number  of  its  mem- 
bers is  extremely  minute,  it  would,  I  believe,  be  es- 
teemed a  society  in  a  state  of  nature;  that  is,  a 
society  consisting  of  persons  not  in  a  state  of  sub- 
jection. Without  an  application  of  the  terms,  which 
would  somewhat  smack  of  the  ridiculous,  we  could 
hardly  style  the  society  a  society  j^olitical  and  mde- 
pendent,  the  imperative  father  and  chief  a  monarch 
or  sovereign,  or  the  obedient  mother  and  children 
subjects."  ^  Upon  this  says  Clark  :  ^  "In  this  domin- 
ion so  called  ( =  ownership)  of  the  original  patriarch, 
law  is  possible.  He  may,  that  is,  govern  by  general 
rules.  It  is  not,  however,  probable,  because  he  would 
have  little  interest  in  setting,  or  at  least  in  adhering 

1  Spirit  of  Laws,  Bk.  I.  Chap.  III. 

2  Province   of  Jurisprudence   Determined,  2d  ed.  1861,  Lect.  VI- 
p.  183. 

8  Practical  Jurisprudence,  p.  117. 


24  THE  NATURE   OF  THE   STATE 

to,  such  rules.  He  would  be  more  likely  to  govern 
by  means  of  occasional  commands ^  In  other  words, 
though  it  is  entirely  improbable  that  a  single,  iso- 
lated family  should  ever  become  j)olitically  organized, 
it  is  not  logically  impossible.  It_^js  not  the  size  but 
the  lack  of  that  element  of  possible  perpetuity  of 
dominion,  that  prevents  the  family  from  becoming, 
as  suchjdi,  State.^ 

But  whatever  may  be  the  proofs  in  support  of 
these  theories  based  upon  family  relationship  and 
upon  historical  evidence,  it  is  clearly  improper  to 
conceive  of  them  as  affording  explanations  of  original 
and  primitive  conditions.  The  most  that  Maine  and 
his  school  can  properly  say  is  that  the  earliest  records, 
especially  those  of  the  Aryan  race,  point  to  the  ex- 
istence of  patriarchal  life.  But  this  is  not  to  say 
that  the  original  type  of  political  life  even  among 
the  Aryans  was  of  this  character.  As  a  recent 
writer  has  said :  "  The  most  archaic  human  society 
which  we  can  picture  to  ourselves  even  by  plausible 
conjecture  is  removed  from  the  actual  origin  of  man- 
kind by  a  lapse  of  time  demanding  geological  rather 
than  historical  measurement,  and  by  a  series  of 
events  of  which  we  know  nothing  whatever."  ^ 

If  thus,  however,  we  are  not  able  to  obtain  from 
history  the  absolute  facts  regarding  the  first  appear- 
ance of  political  life  among  men,  nevertheless  it  is 
not  necessary  to  say  that  from  this  source  we  cannot 

^  For  a  comment  upon  the  loc^ical  value  of  the  argument  based 
upon  tlie  ridiculous,  see  Maine,  Early  Ilislory  of  Instilulions,  p.  379. 
*  Edinburgh  Review,  July,  1893. 


THE   ORIGIN  OF  THE   STATE  26 

obtain  facts  throwing  light  upon  the  subject  we  are 
considering.  Though  we  may  not  be  able  to  obtain 
the  facts  regarding  the  actual  origin  of  the  State, 
yet  we  may  be  able  to  obtain  from  history  and 
anthropology  data  from  which,  in  combination  with 
the  operation  of  the  natural  and  psychic  forces 
working  in  societies  of  which  we  do  know,  we  may 
be  able  to  draw  valuable  conclusions  regarding  the 
conditions  of  early  political  society  and  the  early 
stages  of  its  development. 

With  the  association  of  man  with  his  kind,  arise 
by  necessity  social  interests.  These '  Interests  not 
being  in  all  cases  identical  with  individual  interests, 
and  selfishness  being  an  universal  trait  of  mankind, :r  'f^'^ 
there  early  comes  the  necessity  for  some  means 
whereby  the  common  welfare  may  be  protected. 
To  a  certain  extent  at  least  it  becomes  necessary 
that  there  should  be  some  means  whereby  the  actions 
of  men  may  be  restrained  in  so  far  as  they  are 
directed  to  the  satisfaction  of  individualistic  desires 
that  conflict  with  the  common  weal. 

In  addition  to  the  task  of  preserving  internal 
order  is  soon  imposied  that  of  maintaining  the  indi- 
vidual autonomy  of  a  society  as  a  political  unit.  In- 
deed, it  is  probable  that  it  is  this  necessity  tliat  is  '-^' 
first  co?iscioiisl^  felt._  With  communal  life,  and,  to  a 
large  extent,  communal  goods,  there  naturally  arises 
in  the  mind  of  each  individual  a  feeling  of  interest 
in  the  welfare  and  continuance  of  the  social  unit  of 
which  he  is  a  member.  To  these  utilitarian  grounds 
there  are  early  added  sentimental  feelings  that  in  the 


26  THE  NATURE   OF  THE  STATE 

aggregate  constitnte,  what  is.kno^w^  as  Patriotism. 
Thus  is  begotten  in  the  minds  of  the  people  not  only 
a  consciousness  of  their  unity,  but  an  appreciation  of 
the  necessity  for  some  sort  of  organization  through 
which  they  may  continue  their  existence  as  a  social 
unit  against  hostile  interests  from  without,  as  well 
as  from  disintegrating  forces  from  within.  As  has 
been  said,  it  is  probably  this  necessit^for  a  miH 
organization  that  is.  .first  consciously  felt.  After- 
wards, when  social  development  •  has  proceeded  fur- 
ther, the  existence  of  this  armed  organization  is 
utilized  for  the  satisfaction  of  internal  needs  as 
their  existence  is  recognized. 

Whether  by  original  force  or  by  voluntary  recog- 
nition and  establishment,  whether  founded  upon 
acknowledged  supremacy  of  personal  prowess  and 
sagacity  of  the  leader  selected,  or  whether  springing 
from  patriarchal  authority  the  public  authority 
becomes  established,  cannot  now  be  known  and  un- 
doubtedly differed  in  different  instances.  But  hoiv- 
ever  originated,  a  public  authority  once  created,  the 
State  becomes  an  established  fact} 

With  the  permanent  settlement  of  tribes  upon 
definite  areas  of  land,  the  territorial  element  becomes 

1  "  That  moment  of  tlie  organization  of  every  society,"  says  Pulszky, 
"in  which  it  presents  itself  as  independent,  dominant,  and  capable  of 
asserting  its  own  conditions  of  life  hy  force,  forms  always  a  distinct 
phase  in  the  process  of  association  ;  and  whenever  any  particular  soci- 
ety assumes  this  form  it  appears  as  the  State.  The  State  is  properly 
a  law-creating  and  law-maintaining  society  which  proclaims  and  as- 
serts the  conditions  of  its  existence  in  connection  with  its  own  conduct 
and  that  of  its  subjects,  through  commaTiding,  permissive,  and  pro- 
hibitory rules."  —  Theory  of  Law  and  Civil  Society,  p.  216. 


THE   ORIGINj&r^HE   STA'riE 


^h4' 


embraced  in  the  empiric  conception  of  the  State,  and 
is  henceforth  an  inteiG^ral  part  of  its  life.  The  State 
now  becomes. 9,..peQpl.a,pjoIitic.9Jl^.jQrgan  a  par- 

ticular  territory,  and  the  bonds  oj  kinship  and  tribal 
relations  become  supplemented  by  geographical  unity. 
The  duties  of  the  Government  necessarily  widen 
with  the  cultivation  of  land,  and  with  the  growth  of 
personal  property  arises  the  necessity  for  increased 
duties  of  protection  and  regulation.  Thus  as  civili- 
zation  progresses,  pari  passu,  social  interests  become 
greater,  and,  by  necessity,  the  governing  powers 
more  elaborately  organized  and  endowed  with  more 
extensive. jiiris  dictions. 

Together  with  this  increasing  elaboration  of 
structure  comes  an  increasing  definiteness.  The 
po^versjDf  _the  public  authority  become  more  strictly 
defined  and  their  scope  and  manner  of  exercise 
more  and  more  regulated  by  customs  that  have 
crystallized  into  fixed  rules,  —  rules  that  collectively 
represent  the  jural  ideal  of  the  giyeja  society  at  its 
then  stage  of  development. 

There  has  been  inclination  on  the  part  of  many 
publicists  to  refuse  the  designation  of  "  State  "  to  the 
earlier  types  of  political  life,  especially  to  those 
undeveloped  organizations  wherein  the  people  have 
not  yet  obtained  for  themselves  a  settled  abode. 
Those  taking  this  ground  must  be  considered  as 
governed  by  an  empiric  conception  of  the  State.  We 
cannot  refuse  the  designation  of  State  to  a  society 
of  men,  if  politically  organized,  even  though  it  be  in 
the  nomadic  stage.     Low  order  of  development  can- 


28  THE  NATURE   OF  THE   STATE 

not  deprive  an  institution  of  its  generic  name.  Jl 
society,  is  politically  organized  if  it  have  established 
within  it  and  over  it  a  public  authority  for  the  xion- 
trol  of  those  interests  that  are  connected  with  its 
orderly  existence,  and  the  enforcement  of  its  jural 
ideal,  however  crude  and  limited  that  ideal  may  be. 
Thus  organized,  a  society  of  men  is  properly  em- 
braced within  the  scope  of  the  Staatsidee  and  is 
as  truly  a  State  as  when  in  its  more  developed  form. 

To  make  this  point  clear,  we  can,  for  this  particu- 
lar purpose,  liken  the  term  "  State "  as  used  in 
Political  Science,  to  the  term  "  living  being "  as 
employed  in  Biological  Science.  The  biologist  does 
not  refuse  the  designation  of  living  being  to  the 
lowest  orders  of  life,  even  though  they  be  but  mere 
splotches  of  protoplasm,  so  structureless  and  homo- 
geneous in  character,  that  different  individuals  can 
be  scarcely  distinguished,  and  in  each  of  which  the 
most  powerful  microscope  is  barely  able  to  discover 
differentiation  of  parts.  The  point  that  is  conclu- 
sive to  the  biologist  is  that  such  beings  have  crossed 
the  line  from  the  inorganic  to  the  organic,  from  the 
inert  to  the  living,  that  within  them  is  contained  a 
possible  growth,  a  potential  development. 

Likewise,  for  purposes  of  illustration,  we  may  com- 
pare, though  not  identify,  the  growth  of  the  living 
being  toward  a  higher  life,  with  the  development 
of  political  institutions.  In  both  there  appear  an 
increasing  differentiation  of  parts,  and  growth  in 
variety  of  their  needs.  As  the  higher  forms  are 
assumed,  the  organism  becomes  more  definitely  and 


THE   ORIGIN   OF   THE   STATE  29 

delicately  constructed ;  its  activities  become  increas- 
ingly self-directive,   until    finally   the    self-conscious 
individual  appears.     At  the  same  time  that  this  elab- 
oration of  structure  has  proceeded,  varying  influences 
and   conditions  of   life   have  caused   individuals   to 
differ  from  one  another  until  the  number  of  classes, 
genera,  and  species  becomes  almost  beyond  estimate. 
The  development  of  political  society  is  characterized 
by  these  same  features.     With  the  advance  of  civili- 
zation, come  augmented  social  needs  and  activities. 
The  governmental  organization  of  the  State  becomes 
a    more    complex   structure,  and   is   endowed  with 
wider,  and,  at  the  same  time,  more  definite  power. 
Also  the  exercise  of  these  powers  becomes  more  intelli-   \ 
gently  controlled,  and  in  a  sense  self -directed,  —  that 
is,  dictated  rather  by  the  interests  of  a  State  itself,        -^ 
than  by  the  personal  interests  of  the  individuals  in 
whom  the  exercise  of  the  State's  powers  happens  to     ,' 
be  entrusted.     Likewise,  from  substantial  similarity 
of   governmental  organization,  in  the   early  stages. 
States,  in  the  course    of  their  development,  assume 
diverging  forms.     Geographic,  ethnic,  economic,  and 
moral  conditions,  all  have  their   influence  in  deter- 
mining the  direction  in  which  the  development  of 
political  forms  shall  proceed.     Distinctions  arise  as 
to  the  number  of  interests  to  be  regulated  by  the 
State,  as  to  the  extent  to  which  the  people  generally 
shall  participate,  either  actively  or  by  way  of  pop- 
ular control,   in  the  administration  of  their  public 
affairs,  and  as  to  the  manner  in  which  the  powers  of 
the  State  shall  be  distributed  among  its  several  de- 


30  THE  NATURE  OF  THE  STATE 

partments.  Thus  arise  all  those  varieties  of  Govern- 
ments running  from  the  despotic  Oriental  State  to 
the  democracy  of  the  Swiss  communes.  Later  arise 
such  forms  as  the  feudal  State,  the  constitutionally 
limited  monarchy,  the  composite  State,  and  the  so- 
called  national  State.  Within  each  of  these  classes 
are  also  to  be  found  the  members  distinguished 
from  each  other  by  the  greatest  variety  of  internal 
orQ:anizations. 

The  manner  and  order  in  which  these  various 
forms  have  historically  appeared,  belong  rather  to 
historical  and  descriptive  Political  Science,  than  to 
Political  Philosophy. 

(B)    The    Origin   of    the    State  fronn    the    Rational 
Standjjoint 

Various  attempts  have  been  made  to  obtain,  in  a 
purely  speculative  way,  a  satisfactory  explanation  of 
the  manner  in  which  the  State  may  be  supposed  to 
have  come  into  existence. 

It  is  to  be  observed  that  these  theories  are 
directed  to  the  solution  of  a  problem  essentially 
different  from  that  which  has  just  been  considered. 
The  question  now  to  be  answered  is,  not  the 
manner  in  which  the  State  actually  did  originate, 
but  the  way  in  which  it  may  reasonably  be  sup- 
posed to  have  been  created,  in  order  that  it  may 
be  justified  in  the  exercise  of  the  authority  that  it 
wields.  The  question  thus  assumes  a  largely  moral 
character.     It  is  undoubtedly  a  fact,  that  many  have 


THE   ORIGIN   OF   THE   STATE  31 

believed  States  actually  to  have  arisen  in  the  manner 
in  which  such  theories  suppose,  but  a  mere  proof 
of  the  historical  inaccuracy  of  this  view  does  not 
touch  the  real  point  aimed  at ;  such  point  being,  as 
said,  not  how  the  State  actually  did  originate,  but 
its  existence  being  granted^J.K)w^its_autliority  may 

The  study  of  man  in  his  social  life  reveals  two 
conditwnsthaf" are'l^^^^  conflict.     In   the 

first  place  we  re^cognize  in  him  t^^  deter-  J^ 

mine  consciously  his  own__actions ;  that  is  to  say,  ^'' 
a  volitional  capacity.  It  is  the  possession  of  this 
will  th^t  diatiiiguishes  the  indiyidual  from  his  mere 
physical  frame,  that  in  fact  makes  him  a  person 
and  not  a  thing.  Now  the  jjDossessioij .  of  the  power 
of  willing  which  is  given  to  man  by  his  very  nature  '*^'" 

endows  him  at  the  same  time  with  a  natural  free- 
dom —  for  free  self-determination  of  , action,  .is  ...of 
the  essence  of  willing  —  and  thus  the  oft-used  ex- 
pression "freedom  of  j^iir'  becomes,  in  this. respect 
at  least,  mere  tautology. 

At  the  same  time,  an  inspection  of  mundane  con- 
ditions discovers  these  volitional  subjects  universally 
organized  in  political  communities,  in  which  they 
are  subject  to  a  coercive  control  by  a  general  govern- 
ing authority,  whose  power  extends  even  to  matters 

^  In  this  sense  the  problem  much  resembles  the  inquiry  as  to  the 
origin  of  private  property.  To  the  followers  of  Henry  George,  it 
would  be  no  answer  to  their  claims,  to  demonstrate  historically  the 
manner  in  which  private  property  in  land  arose.  They  would  say 
that  such  would  be  an  explanation,  but  not  n  j unification.  So  likewise 
of  the  State. 


32  THE  NATURE  OF  THE   STATE 

of  life  and  death.  The  universality,  as  well  as  the 
obvious  utility,  of  this  phenomenon  of  governing  and 
governed,  sovereign  and_  subjects,  lead  naturally  to 
the  supposition  that  it  is  not  an  arbitrary  injustice 
and  immoral  condition.  But,  at  the  same  time,  it 
does  not  relieve  the  philosopher  from  the  desire  of 
discovering  if  possible  how  this  condition  of  affairs 
may  be  harmonized  with  the  character  of  man  as 
naturally  gifted  with  powers  of  self-determination 
of  action.  How  comes  it  that  political  power  exists 
and  is  so  universally  acquiesced  in  ?  Is  it  simple 
usurpation,  of  does  it  owe  its  origin  and  existence  to 
voluntary  action  on  the  part  of  those  over  whom  its 
authority  is  exercised  ?  If  the  latter,  how  has  their 
consent  been  given  ?  How  explain  the  necessity  for 
force  to  execute  its  commands  ?  Is  there,  or  can 
there  be,  any  actual  or  theoretical  limit  placed  to  its 
power?  Whence  the  right  of  particular  persons  to 
assume  the  prerogative  of  declaring  and  executing 
its  will  ?     Etc.,  etc. 

We  shall  consider  seriatim  the  various  answers 
that  have  been  given  to  these  questions,  and  from  a 
critical  examination  of  them,  seek  to  obtain  the 
standing  ground  upon  which  to  construct  what  we 
shall  conceive  to  be  the  true  solution. 

The  **  Natural"  or  ''Instinctive"  Theory.  — In 
the  first  place,  it  is  no  solution  of  the  problem  to  rest 
the  State  upon  the  ''  Natural  Sociability  of  Man,"  as  is 
done  by  Blimtschli  and  many  others.  Thus  says  the 
author  whom  we  have  named,  after  considering  and 


THE   ORIGIN  OF   THE   STATE  33 

criticising  the  other  theories  :  "  We  have  still  to  dis- 
cover the  common  cause  of  the  rise  of  States  as  dis- 
tinct from  the  manifold  forces  in  which  they  appear. 
This  we  find  in  human  nature,  which,  besides  its 
individual  diversity,  has  in  it  the  tendencies  of  com- 
munity and  unity.  These  tendencies  are  developed 
and  peoples  feel  themselves  nations  and  seek  a 
corresponding  outward  form.  Thus  the  universal 
impulse  to  society  {Statstrieh)  produces  external  or- 
ganizations of  common  life  in  the  form  of  manly 
self-government,  that^is  in  the  form  of  the  State."* 
Herejve^  have  indeedilie- cmts^-of-th^-State;.- tliat  is  to 
say^_the.natmiaL elements, in„hum.an, nature  that  urge 
its  establishment  and  maintenance.  But  this. is  not 
that. for  which  we  are  seeking.  What  we  wish  to 
discover  is  the  justification  of  political  authority  as 
humanly  exercised,  and  to  harraonize  it  with  predi- 
cated personal  freedom. 

TojDeak_ofJih£.._SlaAfi_a£Lilna^  created, 

makes  of  it  an  entity  independent  .of  man,  uncre- 
ated by  him,  and^^a^,. such,.. not  requiring  justifica- 
tion in  his  eyes.  In  a  general  way,  this  was  the 
view  of  the  Greeks,  who  considered  political  authority 
almost  as  a  metaphysical  necessity  arising  from  the 
social  life  of  man,  as  existing  in  and  of  and  for 
itself,  and  as  determined  T)y  "the  very,  nature  of 
things."  For  this  reason  it  did  not  occur  to  them 
to  consider  its  essential  nature  and  to  vindicate  its 
existence,  in  the  manner  in  which  later  writers  found 
it  necessary.     The  State  was  not  conceived  by  them 

1  Theory  of  the  State,  tvans.  2d  ed.  p.  300. 


.^-^ 


34  THE   NATURE   OF   THE   STATE 

as_^'imaril5L--tli6~  handiwork  of  men,  and  as  siicli 
exercising  a  control  over  tlienx  that  would  require 
a  philosophical  interpretation. 

It  is  of  course  apparent_that  such  a  view  as  this 
evades  rather  than  solves  the  problem  we  are  ex- 

/l^'amininsi;.     Of   course   the    State   is   natural   in   the 

(      " 

\  same  sense  that  everything  that  exists    is   natural. 

'  But  the  fact  with  which  we  are  concerned  is  that 
political  power  is  exercised  through  devices  of  human 
arrangement  and  construction,  and  its  direction  and 
scope  humanly  determined.  To^  say  that  political 
authority  is  natural,  neither  answers  the  question  as 
to  how  its  empiric  manifestation  is  brought  about, 
nor  shows  the  manner  in  which  its  control  over 
the  individual  may  be  harmonized  with  the  latter's 
•  natural  freedom./  Furthermore,  we  can  properly 
conceive  of,  and  in  fact  probably  do  know  of,  ag- 
gregates of  men  over  whom  no  such  control  has 
been  exercised.  The  State  is,  therefore,  not  a  uni- 
versal necessity  at  any  rate,  and  hence  the  questions 
when,  under  what  circumstances,  and  in  wdiat  man- 
ner shall  such  control  be  established  ?  While  it  is 
undoubtedly  true  that  the  communal  life  of  man 
does  necessarily  give  rise  to  mutual  interests,  which 
require  for  their  realization  the  recognition  of  mutual 
rights  and  obligations,  yet  this  does  not  of  itself 
create  a  magistracy  nor  organize  a  governmental 
machinery  such  as  is  necessary  for  the  creation  of 
a  State.  The  establishment  of  these  instruments, 
toQ-ether  with  the  determination  of  the  contents  of 
their  powers,  requires  conscious  humajOLj^^ 


THE   ORIGIN  OF   THE   STATE  35 

Aristotle  says  that  "  man  is  by  nature  a  political 
being."  But  if  we  take  the  case  of  indiyiduals  who 
deny  that  they  feel  this  so-called  instinctive  socia- 
bility or  political  sentiment,  it  would  be  no  justifica- 
tion in  their  eyes  to  say  that  the  general  run  of 
mankind  is  pervaded  by  this  feeling.  They  would 
reply  that  "  we  do  not  feel  so,  and  as  to  lis  there  must 
be  some  other  justification  for  the  coercion  that  is 
exercised  over  us."  And  they  would  further  add: 
"How  does  such  a  theory  assist  in  determining 
the  form  in  which  the  alleged  political  instinct 
shall  find  expression,  and  in  whose  hands  this 
naturally  given  authority  shall  be  vested?" 

Alli^d^ifn^t  practically  identical  with  this  "nat- 
ural" or  "instinctive"  theory,  is  that  which  sees 
in  the  State  a  natural  organism,  and  as  such  gov- 
erned  by  natural  laws  of  development,  decay,  and 
death.  '     ^"""■" 

The  State,  strictly  speaking,  is  not  an  organism. 
The  analogy  between  a  human  society  as  politically 
organized  and  an  organism  is  indeed  striking,  both 
as  to  structure  and  manner  of  development ;  but 
identity  cannot  be  afiirmed.  Though  the  vvill  of 
the  State  is  not  identical  with  the  wills  of  its  con- 
stituent units,  yet,  unlike  the  will  of  the  natural 
organism,  it  is  one  that  is  influenced  and  largely  de- 
termined by  such  individual  volitions.  Furthermore, 
the  existence  and  activities  of  these  units  are  not 
exhausted  in  the  life  and  activity  of  the  State.  Not 
only  is  their  organic  life  independent  of  the  State's 
existence,  but  their  entire  spiritual  being  is  uncon- 


36  THE  NATURE  OF  THE  STATE 

trolled  by  it.  As  we  shall  see  in  discussing  the 
powers  and  aims  of  the  State,  this  control  is,  by 
necessity,  limited  to  the  conduct  of  individuals  only 
in  so  far  as  outward  acts  and  material  interests  are 
concerned.  Over  motives,  whether  good  or  bad,  the 
State  has  no  control,  though,  through  the  environ- 
ment which  it  provides,  it  may  greatly  influence  in- 
directly the  character  of  the  motives  that  are  formed. 
It  cannot  obtain  this  result  by  a  direct  command. 
Again,  the  body  of  the  State  (that  is,  the  community 
of  men  as  politically  organized)  is,  as  Spencer  says, 
discrete  rather  than  concrete.  The  form  of  govern- 
mental organization  of  any  given  State  is  in  constant 
change,  and  at  times  undergoes  radical  alteration ; 
its  constituents  move  freely  from  place  to  place,  and 
their  numbers  may  be  arbitrarily  added  to  or  lessened. 

Contrasted  with  these  characteristics,  the  living 
being  is  an  aggregate  whose  parts  exist  solely  to 
support  and  continue  the  life  of  the  whole.  The 
individual  units  have  no  life  of  their  own,  no  inde- 
pendent powers  of  violation  or  action.  Also,  while  in 
the  organism  the  tendency  is  for  the  influence  and 
control  of  the  whole  over  the  action  of  its  parts  to 
increase  not  only  in  exactness  but  in  scope,  this  is  not 
■the  necessary  tendency  in  the  State,  whose  control, 
'though  tending  to  become  more  and  more  perfect,  at 
the  same  time  secures  to  the  individual  a  continually 
increasing  sphere  of  free  undetermined  action. 

Again,  it  is  a  universal  rule  that  all  natural  organ- 
isms derive  their  life  from  pre-existing  living  beings ; 
while,  as  we  shall  see  later  on,  the  State  does  not, 


THE   ORIGIN   OF   THE   STATE  37 

and  cannot,  obtain  its  vitality  from  other  political 
powers. 

Finally,  and  what  is  absolutely  conclusive  upon  the 
subject,  is  the  fact  that  in  the  organism,  the  laws  of 
development,  though  acting  from  within,  are  blindly 
and  mtuitively  followed;  while  the  growth  of  the 
State,  though  also  from  within,  is,  to  a  considerable  / 
extent  at  least,  consciously  felt,  and  the  form  of  its 
organization  self-directed.  "A_time  arrives  in  the 
progress  of  social  development,"  says  Professor 
Cairnes,  "when  societies  of  men  become  conscious 
^^  ^..9*^.^Pi^.^?L^L,i^i?_^"ehc^^^^^  the  improvement 

becomes  Jqr. them  an  object  of  conscious  and  delib- 
erate effort.  We  cannot,  by  taking  thought,  add  a 
cubit  to  our  stature.  The  species,  in  undergoing 
the  process  of  improvement,  is  wholly  unconscious 
of  the  influences  that  are  determining  its  career. 
It  is  not  so  with  human  evolution.  Civilized  man- 
kind are  aware  of  the  changes  taking  place  in 
their  social  condition,  and  do  consciously  and  de- 
liberately take  measures  for  its  improvement."  ^ 

Thus  the  living  individual  of  the  biologic  world 
is  given  no  choice  of  the  laws  that  shall  govern  its 
vegetative  growth,  though  it  may  influence  to  some 
extent  the  direction  of  such  growth.  For  it,  the 
physical  laws  of  assimilation  and  organic  increase 
are  rigidly  fixed.  The  State,  upon  the  contrary, 
though    influenced,  modified,  and  limited  as  to  the 

1  Fortnightly  Review,  Vol.  XXIII  (January  1875),  quoted  by  Ward; 
Psychic  Factors  of  Civilization,  p.  299.  Cf.  on  this  topic,  Gunton,  Prin- 
ciples of  Social  Economics,  Tt.  IV.  Chap.  II.  Sec.  2. 


38  THE   NATURE   OP   THE   STATE 

form  and  development  of  its  governmental  orga;niza- 
tion  by  natural  laws  and  objective  influences,  is  yet 
itself  possessed  of  a  volitional  power  that  so  domi- 
nates its  external  manifestations,  that  of  its  own 
will  it  may  change  its  form  to  an  extent  to  which 
no  theoretical  limit  can  be  placed. 

In  fine,  as  has  been  already  said,  the  State,  strictly 
considered,  is  essentially  psychic  rather  than  physical. 
It  represents  a  will  rather  than  a  physical  being; 
and  thus,  considered  apart  from  the  governmental 
machinery  through  which  it  acts,  and  the  individuals 
organized  under  it,  only  psychological  qualities  are 
attributable  to  it. 

It  is  also  inaccurate  to  speak  of  the  State  as  a 
"  moral  organism,"  as  do  many  who  refuse  to  it  the 
designation  of  "natural  organism."  It  is  evident 
that  an  attempt  is  thus  made  to  distinguish  between 
a  natural,  or,  we  might  say,  physical  or  physiological 
organism,  and  a  moral  organism.  The  term  "  organ- 
ism "  does  not  admit  of  such  use,  and  is  applicable 
only  in  a  physiological  sense.  Morality,  on  the  other 
hand,  is  an  attribute  of  a  person,  and  not  of  a  thing. 
A  man  may  be  moral,  but  his  physical  organic  frame 
is  not.  To  speak  of  a  '*  moral  organism  "  is  thus  a 
misuse  of  terms. 

Utilitarian  Theory.  —  When  considered  from  the 
standpoint  from  Avhich  we  are  viewing  it,  the  obvi- 
jous  utility  of  the  State  is  not  of  itself  a  justification. 
So,  as  Dr.  Taylor  says :  "  When  Mr.  Morley  tosses 
off  Rousseau's  problem  by  declaring  that  the  State 
finds  its  justification  in  considerations  of  proved  expe- 


THE   ORIGIN   OF   THE   STATE  39 

diency  with  reference  to  tlie  special  case,  it  cannot 
be  supposed  that  the  author  of  I'he  Social  Contract 
would  have  admitted  that  this  solution  touches  his 
real  difficulty.  Rousseau  doubtless  had  as  little 
question  as  Mr.  Morley  concerning  the  practical 
value  of  a  really  good  government.  But  he  had  a 
very  exalted  idea  of  the  sacredness  of  personality, 
and  he  found  it  difficult  to  reconcile  with  that  idea 
the  fact  that  in  the  State  the  individual  is  called  on 
to  submit  to  an  alien  will.  He  averred  that  no  such 
high  prerogative  belongs  to  any  man  or  set  of  men 
save  in  so  far  as  the  individual  has  granted  it.  In 
this  he  doubtless  erred  j-  but  it  surely  would  not  help 
him  to  repeat  time-worn  truisms  about  the  greatness 
and  value  of  the  State.  You  have  a  good  thing, 
he  would  have  said,  but  whence  your  authority  to 
impose  it  on  me  ?  This  same  objection  applies  to 
any  other  theory  which  attempts  to  justify  the  State 
by  justifying  its  mission."  ^ 

As  a  matter  of  fact,  however.  Dr.  Taylor,  while 
properly  stating  the  question,  does  not  himself 
escape  entirely  from  the  utilitarian  view.  His 
reasoning  is  as  follows.  Conceding  to  each  indi- 
vidual the  prerogative  of  rule,  (i.e.  the  prerogative 
of  coercively  interfering  with  the  liberty  of  other  //-r- 
persons  when  necessary  in  order  to  maintain  one's  ^  '■ 
own  version  of  the  jural  idea),  he  maintains  this 
general  prerogative  to  belong  of  right  to  the  one 
best  fitted  to  exercise  such  a  power.     Since,  however, 

^  The  Right  of  (he  Stale  to  Be,  p.  46.     This  essay  contains  some  very 
acute  reasoning,  and  I  have  obtained  many  suggestions  from  it. 


40  THE  NATUEE   OF  THE   STATE 

through  the  elimination  in  a  large  measure  of  in- 
dividual and  personal  interests,  and  the  increased 
wisdom  obtained  from  the  union  of  minds,  persons 
acting  collectively  are  manifestly  better  fitted  to  ex- 
ercise this  authority  than  when  acting  individually ; 
and,  since  the  whole  community  is  evidently  better 
qualified  for  this  work  than  any  other  association 
of  men ;  therefore,  the  prerogative  of  men  acting  in 
communities  is  the  highest  of  all  human  preroga- 
tives. The  State,  therefore,  is  justified  in  assuming 
and  exercising  final  authority  and  control  in  the 
name  of  justice.  Thus,  according  to  this  theory, 
the  State  is  endowed  with  this  prerogative  of  rule 
only  because  it  is  composed  of  individuals  possess- 
ing the  personal  prerogative  of  rule.  "  It  is  the 
prerogative  of  man  acting  in  and  through  communi- 
ties." Furthermore,  the  authority  of  the  State  is 
not  obtained  by  a  process  of  delegation.  The  indi- 
vidual prerogative  is  not  destroyed  but  suspended 
and  controlled  by  a  higher^  prerogative.  In  conclu- 
sion, the  author  says :  "  One  need  only  reflect  that 
\  i  \f^  the  community  is  an  association  so  extensive  as  to 
famish  an  authority  more  nearly  free  from  personal 
elements  than  any  other  association ;  that  the  sense 
of  responsibility  to  a  real  public  opinion  makes  the 
most  reckless  more  thoughtful,  lifts  them  out  of  their 
natural  particularity,  and  enables  them  to  realize 
in  some  degree  the  rationality  which  alone  justi- 
fies their  possession  of  authority ;  and,  finally,  that 
the  community  is  an  association  which  brings  to  the 
service  of  justice  a  physical  force  so  overwhelming 


THE   ORIGIN   OF  THE   STATE  41 

that  the  supremacy  of  justice  is  commonly  assured 
without  even  a  resort  to  that  force.  From  these 
considerations  the  conchision  seems  inevitable  that, 
while  the  preroga-tive  of  men  acting  separately  is 
high,  and  that  of  men  acting  in  private  association 
is  higher,  that  of  men  acting  through  the  community 
is  highest  of  all."^ 

It  is  possible  that  we  have  not  properly  understood 
Mr.  Taylor's  theory,  but  so  far  as  we  have  appreciated 
it,  it  seems  to  us  to  be  essentially  utilitarian.  Pre- 
rogatives are  distinctly  regarded  as  relatively  higher 
or  lower  according  to  utilitarian  standards ;  and,  in 
the  paragraph  last  cited,  this  view  is  explicitly  stated. 

The  Force  Theory.  —  Thirdly,  the  so-called  "  Force 
Theory,"  that  mightier  se  is  a  warrant  for  coercion, 
is  a  futile  attempt  to  avoid  the  question,  and  scarcely 
needs  refutation.  What  causal  connection  can  there  be 
between  "  might "  and  "  right "  ?  Morality  has  refer- 
ence only  to  a  subject  with  powers  of  free  self-deter- 
mination of  action.  As  Rousseau  says,  "  Strength  is 
physical  power ;  I  do  not  see  what  moral  force  could 
result  from  its  action.  To  yield  to  force  is  an  act  of 
necessity,  and  not  of  will ;  it  is  at  the  most  an  act 
of  prudence.  In  what  sense  could  it  be  of  duty?  .  .  . 
If  obedience  must  be  rendered  to  strength,  it  is  not 
necessary  to  obey  from  duty ;  and  if  obedience  is  not 
exacted,  it  is  not  necessary  to  obey.  It  may  be  seen 
then  that  the  moral  right  adds  nothing  to  strength ; 
it  has  no  significance  here.  Obey  them  that  have 
the  rule  over  you.     If  that  means  yield  to  force,  the 

^  Oj).  cit.  p.  95. 


42  THE   NATURE  OF  THE   STATE     . 

precept  is  good  but  superfluous ;  I  answer  for  its 
never  being  violated."  ^ 

Dismissing,  then,  these  various  attempts  to  beg 
the  question  rather  than  to  answer  it,  there  would 
seem  to  be  two  other  grounds  upon  which  the  justifi- 
cation of  the  State  might  conceivably  rest.  First, 
that  it  is  an  institution,  which,  though  humanly 
administered,  is  yet  created  and  justified  by  the  will 
of  God,  and  rests  therefore  upon  a  will  higher  than 
that  of  man,  —  a  will  which  is  itself  the  creator  of 
man  and  of  the  entire  universe,  and  the  source  of 
all  justice.  Secondly,  the  State  may  conceivably  be 
regarded  as  a  purely  human  institution,  but  resting 
upon  the  original  consent  of  the  individuals  over 
whom  its  authority  is  exercised,  and  therefore,  upon 
the  principle  of  volenti  non  fit  injuria,  not  oppressive 
to  their  freedom. 

So  important  have  been  these  two  theories  in  the 
history  of  political  ideas  that  we  shall  consider  them 
with  some  degree  of  particularity. 

The  Divine  Theory:  History  of. — During  An- 
tiquity and  the  Middle  Ages,  the  State  was  generally 
viewed  as  of  direct  divine  creation.  In  the  ancient 
empires  of  the  East,  to  such  an  extent  were  religion 
and  law  confused,  that  political  science  can  scarcely 
be  said  to  have  existed  as  an  independent  branch  of 
knowledo;e.  The  ultimate  sanction  of  all  law  was 
supposed  to  be  found  in  the  sacred  writings.  In  all 
of    the  vast  Asiatic    monarchies  of    early  days  the 

1  The  Social  Contract,  Bk.  I.  Chap.  III. 


THE   ORIGIN   OF   THE    STATE  43 

rulers  claimed  a  divine  right  to  control  the  affairs  of 
the  State,  and  this  was  submitted  to  by  the  people 
with  but  little  question. 

In  the  Shemitic  races  the  theocratic  theory  was 
carried  to  the  extent  of  not  only  maintaining  the 
authority  of  their  rulers  to  rest  upon  divine  delega- 
tion and  sanction,  but  of  alleging  a  direct  oversight 
and  participation  by  the  Almighty  in  the  control  of 
public  affairs. 

Among  the  Greeks,  as  already  said,  the  State  was 
considered  as  an  institution  existing  in  itself  and  of 
itself  and  as  determined  by  the  very  nature  of  things. 
As  such,  it  had  a  divine  origin,  as  did  all  things  in 
the  phenomenal  world.  The  State  was  not  con- 
sidered by  them  as  primarily  the  handiwork  of  man, 
but  as  demanded  by,  and  as  a  necessary  outgrowth 
from,  the  very  nature  of  man  himself. 

Thus  while  the  political  temperament  of  the  -^ 
Greeks,  assisted  by  the  topography  of  their  country, 
led  to  the  development  of  the  "City  State"  rather 
than  the  "  National  State  "  as  their  civic  ideal,  their 
philosophical  conception  of  the  nature  of  the  State 
led  them  to  view  it  not  so  much  as  a  means  for 
furthering  human  development  as  an  end  in  itself. 
Thus  the  State  came  to  be  considered  as  the  all  in 
all,  and  the  citizens  as  of  significance  only  as  sub- 
jects of  the  State.  These  two  elements,  the  prac- 
tical and  the  philosophical,  though  not  logically 
connected,  became  actually  united,  for  it  was  only 
the  comparatively  small  size  of  the  City  .State  that 
rendered   practically  possible  the  execution  of   that 


44  THE   NATURE  OF   THE    STATE 

unlimited  scope  of  governmental  powers  that  logically 
followed  from  the  conception  of  the  State  as  "  natu- 
ral "  and,  therefore,  indirectly  divine.  For  its  main- 
tenance it  was  dependent  upon  the  continuation  of  the 
Hellenic  spirit  in  its  full  strength,  —  "when,"  as  says 
Felix  Dahn,  "  the  subject  without  thought  submitted 
himself  to  the  substantial  embodiment  of  the  national 
spirit  as  traditionally  expressed  and  represented  in 
religion,  customs,  and  the  State,  and  thus  submitted 
himself  with  a  feeling  that  things  could  not  be  other- 
wise."^ With  the  Macedonian  and  Roman  conquests, 
this  spirit  began  to  die  out.  The  old  relations  were 
dissolved,  outside  interests  were  introduced,  disinte- 
gration of  national  and  political  life  was  rapid,  and 
the  independence  of  the  Grecian  States  soon  became 
a  thing  of  the  past. 

With  the  Romans  began  in  practice  a  clearer  dis- 
tinction between  divine  and  civil  authority.  By 
them,  law  was  considered  as  created  by  the  State, 
and  its  final  authority  sought  in  the  Roman  people. 
They  may  thus  be  said  to  have  been  the  first  to 
attempt  to  give  to  the  structure  of  the  State  a 
definite  legal  form,  and  thereby,  while  limiting  its 
/  governmental  power,  to  give  to  it  greater  stability 
and  uniformity.  /At  the  same  time,  as  is  well  known, 
the  Romans  were  practical  lawyers  and  adminis- 
trators rather  than  philosophers,  and,  so  far  as  they 
did  indulge  in  philosophical  speculations,  followed 
closely  Grecian  thought,   and  made   slight,  if   any, 

^  Lalor's    Ency.   Pol.    Sci.,    article    The   Philosophij   of  Law.     Cf. 
Freeman,   Compuralive  Politics,  p.  93, 


THE  ORIGIN  OF  THE  STATE  .  45 

advances  upon  it.  This  is  seen  especially  in  the 
writings  of  Cicero. 

Just  as  throughout  the  entire  history  of  political 
philosophy  we  find  specific  theories  evolved  only 
as  demanded  by  the  events  and  conditions  of  the 
time,  so  did  the  question  of  the  ultimate  origin  of 
temporal  power  fail  to  give  rise  to  more  than  casual 
thought,  as  long  as  the  origin  of  the  State  was 
of  interest  only  as  a  part  of  political  speculation, 
and  unconnected  with  any  practical  question  in  the 
world  of  politics.  Hence  it  was,  that  it  was  not 
until  the  rise  of  the  temporal  power  of  the  Church, 
and  the  struggle  between  the  Pope  and  the  Emperor, 
that  the  divine  or  non-divine  origin  of  political  power 
became  actively  discussed. 

In  its  early  history  the  Church  of  Christ  was  dis- 
tinctly and  avowedly  an  organization  claiming  do- 
minion over  only  the  spiritual  interests  of  mankind. 
In  the  patristic  writings  obedience  to  the  State  in  all 
things  not  contrary  to  the  law  of  God  was  distinctly 
taught.  The  supremacy  of  the  civil  jDOwer  in  all  things 
temporal  was  freely  admitted.  The  command  to  ren- 
der unto  Caesar  that  which  is  CjBsar's  was  uniformly 
held  during  these  earlier  years  as  providing  the  prin- 
ciple according  to  which  the  relations  between  Church 
and  State  should  be  governed.  "  If  the  Emperor  de- 
mand tribute,"  said  Saint  Ambrose,  "we  should  not 
refuse.  ...  If  the  Emperor  desire  our  fields,  he  has 
the  power  to  take  them,  no  one  of  us  can  resist.  .  .  . 
"We  will  pay  to  Coesar  that  which  is  Caesar's."  ^ 

^  Epist.  de  basilicis  Iradendis,  38,  t.  II.  (Ed.  Bened.  p.  872). 


46  THE  NATURE   OF  THE   STATE 

In  proclaiming  the  kingdom  of  God,  the  Church 
declared  the  liberty  of  conscience  and  gave  to  the 
individual  a  law  in  spiritual  affairs  outside  of  and 
superior  to  that  of  the  State.  As,  however,  the  See 
of  Rome  increased  in  power  and  importance,  it  began 
to  claim  powers  other  than  those  embraced  in  this 
principle.  It  maintained  its  right  to  preserve  the 
peace,  to  decide  as  to  the  justice  of  quarrels  between 
temporal  princes,  to  enforce  the  purity  of  morals 
with  temporal  might,  to  defend  the  oppressed,  and 
to  enforce  its  decisions  by  anathema  and  excommu- 
nication, and  even  by  force  of  arms  when  necessary. 

Thus,  by  degrees,  the  temporal  power  of  the  Church 
increased  until  it  became  itself  a  civic  organization, 
promulgating  laws  and  enforcing  obedience  thereto 
by  military  coercion,  and  contesting  with  the  tem- 
poral rulers  of  Europe  the  right  of  supreme  control. 
Dante,^  Occam,^  and  Marsillius  of  Padua  ^  defended 
in  their  writings  the  claims  of  the  temporal  powers 
in  this  controversy.  Hincmar,  Hildebrand,  Thomas 
Aquinas,^  and  Giles  of  Rome^  supported  the  papal 
pretensions. 

In  this  great  mediceval  strife  between  papal  and 
temporal  power,  both  parties  remained,  however, 
united  upon  one  point;  namely,  that  this  dualism  of 
Church  and  State  found  an  ultimate  union  in  a  divine 
order.     They  were  not   divided  as  to  the  ultimate 

1  De  Monarchia. 

2  Octo  f/neslione.s  super  potestate  summi  pontijicis.     Dialogus  Magistri. 
^  Defensor  pads. 

*  De  regimine  principium. 

®  De  regimine  principium.     De  ecclesiastica  poteslale. 


THE  ORIGIN  OF  THE   STATE  47 

nature  of  all  political  authority,  but  as  to  the  man* 
ner  of  its  delegation  by  its  supreme  author  to  particu- 
lar hands. 

We  would  not  expect,  nor  do  we  find  in  this  po- 
lemical literature,  systematic  treatises  upon  the  nat- 
ure of  the  State.  The  writings  deal  with  utilitarian 
interests,  quote  the  patristic  writings  and  the  Scrip- 
tures as  the  highest  authorities,  and  depend  upon  con- 
flicting versions  as  to  the  historical  relations  between 
the  Church  and  the  Empire.  Thus  in  all  these 
writings  we  find  political  philosophy  confused  with  --"r 
religious  dogma,  and  its  results  largely  vitiated  by 
the  extent  to  which  the  minds  of  men  were  dominated 
by  theological  beliefs.  Aquinas,  for  example,  argues 
as  follows :  "  The  hiQ;hest  aim  of  mankind  is  eternal 
blessedness.  To  this  chief  aim  all  earthly  aims  must 
be  subordinated.  This  chief  aim  cannot  be  realized 
through  human  direction  alone,  but  must  obtain  divine 
assistance,  which  is  only  to  be  obtained  through  the 
Church.  Therefore  the  State,  through  which  earthly 
aims  are  attained,  must  be  subordinated  to  the  Church. 
Church  and  State  are  as  of  two  swords  which  God 
has  given  to  Christendom  for  its  protection ;  both  of 
these,  however,  are  given  by  Him  to  the  Pope  and 
the  temporal  sword  by  him  handed  to  the  rulers  of 
the  States.  Thus  the  Pope  alone  received  his  power 
directly  from  the  Almighty,  the  Emperor  his  authority 
indirectly  through  the  Pope's  hands."  ^ 

Against  this  argument,  the  supporters  of  the  su- 
premacy of  the  temporal  power  replied:  "Between 

^  See  Janet,  Histoire  de  la  Science  Politique,  Vol.  I.  pp.  381-401. 


48  THE  NATURE  OF  THE  STATE 

spiritual  and  temporal  affairs  there  is  a  distinction 
that  cannot  be  destroyed.  The  control  of  temporal 
affairs  belongs  exclusively  to  the  State,  and  the 
Roman  Bishop  possesses  no  power  either  to  enact  or 
to  suspend  laws  regulating  affairs  other  than  those 
of  the  spirit.  The  kingdom  is  necessarily  and  avow- 
edly declared  by  the  Scriptures  to  be  not  of  this  earth, 
but  of  the  world  to  come  •  not  over  the  bodies  of 
rnqn,  but  over  their  souls." 

The  Protestant  Reformation,  rather  than  lessening 
V'  this  confusion  of  divine  and  political  power,  tended 
to  increase  it.  ,  All  of  its  leaders,  Luther,  Melanch- 
thon,  Zwingli,  and  Calvin,  reiterated  the  divine  origin 
of  civil  authority  and  the  necessity  of  the  citizens' 
obedience  thereto.  The  opponents  of  the  Reforma- 
tion, especially  the  Dominicans  and  Jesuits,  directed 
all  their  energies  to  proving  the  purely  mundane 
character  of  the  State.  This  they  did  in  order  to 
give  to  the  Church  the  sole  claim  to  spiritual  origin 
and  divine  authority,  and  hence  to  the  placing  of 
political  power  upon  a  lower  basis  as  compared  with 
it.  It  was  at  this  time  and  in  the  writings  of  these 
ecclesiastics  that  the  doctrine  of  7iaturrccJit  was  given 
a  prominence  in  political  speculations  that  it  was 
henceforth  to  maintain  until  the  present  century.^ 
(  When  however  the  contest  became  no  longer  one 
between  Pope  and  Emperor,  ecclesiastical  and  tem- 
^  poral  power,  but  between  ruler  and  ruled ;  and  the 
scope  and  legitimacy  of  political  rule  in  particular 

^  Upon  this  point  see  especially  Gierke,  Johannes  Althusius  u.  die 
Entwicklung  der  nalurrechtlichen  Staatstheorien,  pp.  Gi  et  seq. 


THE   ORIGIN   OF   THE   STATE  49 

hands  became  questioned,  the  controversy  assumed  a 
new  shape.  The  point  in  dispute  then  came  to  be,  not 
so  much  the  origin  of  political  power  itself,  as  the 
hands  by  which,  and  the  manner  in  which,  it  could 
rightfully  be  exercised.  By  the  end  of  the  thirteenth 
century  it  had  become  an  axiom  accepted  by  all 
parties,  that  the  will  of  God  or  the  nature  of  man 
were  to  be  considered  only  as  caiisce  remotce,  and  that 
all  ownership  lay  in  the  free  contractual  gift  of  the 
community  {per  vicmi  vohmtarice  subjectionis  et  con-  ,. 
seiisus),  the  debated  point  being  only  as  to  the  effect  Jf 
of  such  a  popular  contract ;  that  is,  whether  resulting 
in  a  total  alienation  or  merely  a  revocable  delegation 
of  the  supreme  political  power.  ) 

We  now  find  the  temporal  princes,  who,  in  their 
contests  with  the  Pope,  had  been  willing  enough 
to  separate  entirely  their  rule  from  the  sanction  or 
support  of  the  Church,  looking  to  the  Church  to 
uphold  them  in  their  rule,  by  declaring  tyrannicide 
and  popular  deposition  impious ;  while  the  Clergy, 
especially  in  France  and  other  countries  whose  rulers 
remained  loyal  to  Rome,  we  discover  refusing  to  accept 
the  full  consequences  of  the  theories  of  Contract  and 
Natural  Law  which  they  had  been  willing  enough  to 
support  in  the  Church's  struggles  against  the  Empire.^ 

1  During  the  counter-revolutionary  period  that  followed  the  Con- 
gress of  Vienna,  the  absolutist  attitude  of  the  Church  was  very  pro- 
nounced. Ex-President  Andrew  D.  White,  in  the  Papers  of  the  Am. 
Hist.  Ass'n  (Vol.  IV.  Part  I.),  gives  an  extreme  instance  of  this  in  an 
article  entitled  "A  Catechism  of  the  Revolutionary  Reaction."  It  is 
unnecessary  to  say  that  at  present  the  Church  at  Rome  supports  the 
French  Republic,  and  is  apparently  in  full  sympathy  with  true  demo- 
cratic thought. 


50  THE  NATUEE   OF   THE   STATE 

It  is  only  in  the  absurd  and  extravagant  patriar- 
chal theory  of  Filmer,^  according  to  which  royal 
authority  is  based  upon  the  dominion  given  by  God 
to  Adam  at  the  time  of  his  expulsion  from  Eden,  and 
in  the  subservient  writings  of  Bossuet/  that  we  find 
the  divine  theory  again  openly  argued. 

At  the  same  time,  it  cannot  be  denied  that  the 
idea  of  a  "divinity  that  doth  hedge  a  King"  con- 
tinued to  be  of  great  actual  influence  upon  the  ideas 
of  the  people  —  an  influence  that,  though  crushed  in 
the  French  Revolution,  revived  during  the  counter- 
revolutionary period  that  followed  1815,  and  still  lives 
in  the  thought  of  the  commoner  people  of  Europe, 
especially  of  those  under  the  more  autocratic  of 
rulers.  But  for  all  purposes  of  political  philosophy, 
the  divine  theory  disappeared  before  that  of  natural 
law  and  contract,  and  received  its  coup  de  grace  on 
the  continent,  from  the  writings  of  Hugo  Grotius, 
and  in  England  from  those  of  Hobbes  and  Locke.^ 

Criticism  of  the  Divine  Theory.  —  It  will  be  seen 
that  the  application  of  this  theory  to  political  condi- 

^  Patriarcha,  or  the  Natural  Potver  of  Kings,  published  in  1680. 
For  refutation  of  Filiner's  views,  see  Sidney,  Discourses  on  Govern- 
ment, and  Locke,  Two  Treatises  of  Government,  Book  I. 

2  Politique  tirc'e  de  VKcriture  sainte. 

8  Mr.  Spencer  remarks  how  remarkable  it  is  that  a  system  of 
thought  may  often  be  seen  going  about  in  high  spirits  after  having 
committed  suicide.  Thus  it  is  that  the  divine  theory,  though  killed 
and  buried,  is  from  time  to  time  revived  and  seen  going  about  in 
habiliments  changed,  to  be  sure,  but  so  tliin  as  to  Imt  slightly  hide  its 
true  self.  Instances  of  this  are  to  be  seen  in  Stahl,  Die  Philosnphie 
lies  Reclits,  Haller,  Restauration  der  Staatswissenschaft,  and  Mulford's 
Apocalyptic  rhapsody  (as  Professor  Dunning  terras  it),  The  Nation. 


THE  ORIGIN  OF  THE   STATE  51 

tions  has  been  of  a  twofold  order :  first,  as  justifying 
political  authority  in  general ;  and  secondly,  as  legiti- 
mizing the  exercise  of  such  political  authority  in  par- 
ticular hands  by  viewing  de  facto  rulers  as  either  direct 
agents  of  the  Almighty,  or  as  wielding  a  power  in- 
directly delegated.  But,  however  understood,  the 
theory  is  devoid  of  value,  and  open  to  much  of  the 
same  logical  criticism  as  that  applied  to  the  theory 
of  the  State  as  a  purely  "  natural  "  institution.  To 
those  who  are  not  theists,  the  two  theories  are  not, 
in  fact,  separable.  The  theist  must  hold  that  all 
power  is  from  God,  and  if  this  be  so,  the  individual 
may,  with  a  propriety  equal  to  that  of  the  State, 
maintain  that  his  inclinations  and  powers  are  of 
divine  origin  and  entitled  to  recognition  irrespective 
of  law  or  custom.  Divine  laws  being  at  most  only 
partially  revealed  to  us  in  the  Scriptures,  there  still 
remains  a  very  large  portion  of  human  conduct  that 
must  be  regulated  by  rules  resting  upon  human 
experience  and  reason. 

Were  it,  indeed,  a  fact  that  the  actual  presence 
and  activity  of  divine  action,  as  distinguished  from 
human  action,  could  be  seen  in  the  enactment  and 
enforcement  of  the  law  of  the  State,  it  would  be 
another  thing ;  but  that  which  we  do  see,  whatever 
mcay  be  its  ultimate  metaphysical  basis,  is  the  State 
acting  through  human  agencies.  Now  whence  the 
prerogative  of  rule  of  these  human  agencies,  who- 
ever or  whatever  they  may  be  ?  Even  though  the 
substance  of  the  State,  or  rather  the  tendency  to 
political  life,  be  implanted  by  Nature  or  by  God  in 


52  THE  NATURE   OF  THE   STATE 

human  nature,  the  realization  of  this  political  ten- 
dency, its  actual  manifestation  and  operation,  has 
been  left  to  human  agencies,  and  it  is  the  justifica- 
tion of  the  authority  exercised  by  these  human  agen- 
cies for  which  we  are  seeking.  Grant  all  that  the 
divine  theory  necessarily  maintains;  that  ultimately 
all  power  is  from  God ;  that  by  Him  is  implanted  in 
the  nature  of  man  the  need  and  demand  for  the 
State,  and  we  get  no  nearer  to  knowing  why  in 
any  particular  case  there  should  exist  in  a  com- 
munity a  definite  set  of  individuals  arrogating  to 
themselves  the  right  of  exercise  of  this  divine  pre- 
rogative of  rule.  All  that  necessarily  follows  from 
the  divine  theory  is  that  political  rule  of  some  sort 
or  other  is  divinely  justified.  No  test,  or  suggestion 
of  a  test,  is  thereby  afforded  for  determining  whether 
any  particular  empiric  manifestation  of  such  order  is 
exercised  according  to  this  divine  purpose,  or  by 
the  hands  divinely  appointed ;  unless,  indeed,  we  say 
that  the  mere  fact  that  the  given  State  does  exist 
and  that  its  government  is  in  the  hands  that  it  is, 
such  a  condition  must  therefore  be  according  to 
the  will  of  Him  who  is  omnipotent  and  directs  all 
human  tilings.  But  of  course  this  is  nothing  more 
than  saying  that  "whatever  is,  is  right,"  which  is 
also  the  motto  of  the  Force  Theory.  Thus,  instead  of 
affording  a  basis  for  true  political  authority,  it  logi- 
cally justifies  every  conceivable  act,  whether  such  act 
tends  to  uphold  or  subvert  the  existing  state  of  rule. 
It  is  in  fact  quite  superfluous  to  show  in  this  age 
that  from  their  own  inherent  nature,  divine  or  moral 


THE   ORIGIN  OF  THE   STATE  63 

sanctions  can  have  no  api3lication  to  political  matters. 
That  compulsion  for  which  we  are  seeking,  and  which 
is  described  as  political,  is  a  compulsion  that  is  backed 
by  outward  human  physical  force,  and  its  sanctions 
have  reference  to  actual  fear  of  physical  evil.  Its  ap- 
plication is  thus  necessarily  limited  to  external  acts. 
Contrary  to  this,  the  laws  of  God  and  the  rules  of 
morality  have  their  authority  upon  the  intention 
rather  than  the  outward  act,  and,  in  fact,  the  very 
application  of  morality  to  actions  predicates  a  free- 
dom of  outward  action.  Thus  says  Green,  in  dis- 
tinguishing the  two  realms  occupied  by  morality 
and  political  Sovereignty  :  "  The  question  sometimes 
put,  whether  moral  duties  should  be  enforced  by  law, 
is  really  an  unmeaning  one  ;  for  they  simply  cannot 
be  enforced.  They  are  duties  to  act,  it  is  true,  and 
an  act  can  be  enforced ;  but  they  are  duties  to  act 
from  certain  dispositions  and  with  certain  motives, 
and  these  cannot  be  enforced.  Nay,  the  enforcement 
of  an  outward  act,  the  moral  character  of  which  de- 
pends on  a  certain  motive  and  disposition,  may  often 
contribute  to  render  that  motive  and  disposition 
impossible."^ 

The  two  domains  of  political  and  divine  obligations 
are  thus  not  only  exclusive  (not  necessarily  exclusive 
as  relating  to  particular  acts,  but  only  as  to  the  char- 
acter of  the  sanction  applied),  but,  from  the  individual 
standpoint,  often  contradictory.  For  the  solution 
of  this  difficulty,  the  premise  that  all  power  is  from 
God,  gives  no  assistance. 

1  Philosophical  Works,  Vol.  TI.  p.  310. 


CHAPTER  IV 

THE  ORIGIN  OF  THE  STATE,  CONTINUED:  THE  CON- 
TRACT THEORY 

In  our  search  for  a  justification  of  the  authority  of 
the  State,  we  have  thus  far  been  forced  to  reject  as 
invalid  the  answers  given  by  the  "  force,"  "  instinc- 
tive," "  utilitarian,""  natural,"  and  " divine  "  theories. 
There  yet  remains  to  be  considered  the  so-called 
"Contract  Theory,"  or  that  theory  which  founds 
the  State  upon  an  original  agreement  entered  into 
by  the  individuals  of  a  society,  who,  prior  to  that 
time,  have  been  entirely  independent  of  political 
control. 

Now,  aside  from  the  conception  of  a  superhuman 
spirit,  there  is  no  other  reason,  understanding,  or  will 
than  that  existing  in  individual  human  beings.  If, 
then,  we  premise  in  these  individuals  an  inherent 
r'vAit  of  self-determination  of  action  as  the  foun- 
dation  of  all  morality,  it  would  seem  necessarily  to 
follow,  that  the  only  way  in  which  an  authority  that 
coercively  restrains  these  individuals  can  justifiably 
exist,  is  by  the  consent  of  the  subjects  in  some 
way  given  to  the  imposition  of  such  control  over 
them.  ( It  remains  to  be  seen,  however,  whether  this 
consent  is  of  a  sort  that  may  be  given  in  such  an 
original   compact   as    is   emljraccd   in    the  Contract 

6'4 


THE   ORIGIN  OF  THE   STATE  55 

Theory,  and  whether,  in  fact,  such  a  compact  is 
logically  possible. 

Before  proceeding  directly  to  this  pointy  it  will  be 
necessary  to  state  in  a  general  way  the  various  forms 
in  which  this  theory  has  been  held  by  different 
writers.  In  giving  the  views  of  these  writers,  we 
shall  state  at  considerable  length  not  only  their 
theories  as  to  the  origin  of  the  State,  but  also  the 
deductions  drawn  by  them,  from  this  premise,  re- 
garding the  proper  scope  of  the  State's  power,  and 
the  nature  of  the  relations  that  exist  between  the 
governed  and  the  governing.  This  we  do,  because 
it  is  pre-eminently  in  these  writers  that  we  find  an 
entire  philosophy  of  the  State.  From  their  positions 
we  shall  thus  be  able  to  obtain  points  from  which  to 
develop  our  own  conception  of  the  State,  not  only 
as  regards  its  origin,  but  as  to  its  various  attributes. 

History  of  the  Contract  Theory.  —  It  is  to  be 
noticed  in  the  beginning  that  the  term  "  contract  "  ^ 
as  found  in  political  theory,  is  used  in  a  double 
sense  :  — 

First:  as  descriptive  of  an  agreement  between 
rulers  and  subjects,  according  to  which  the  power  of 
rule  is  placed  in  particular  hands.  This  we  may 
term  the  "  Governmental  Compact." 

Secondly :  as  descriptive  of  an  agreement  between 
individuals  of  a  particular  community  according  to 
which    such    community    first    becomes    politically 

*  There  are  some  writers  who  attempt  to  distinguish  between  the 
terms  "  contract "  and  "  compact."  In  tliis  work  they  are  used 
synonymously. 


56  THE  NATURE  OF  THE  STATE 

organized ;  and  in  which  agreement  there  is  no  neces- 
sary reference  to  the  manner  in  which,  or  the  persons 
by  whom,  the  political  power  is  to  be  exercised. 
This  is  more  usually  termed  the  "  Social  Contract," 
but  might  more  properly  be  named  the  "Political 
Contract,"  for  by  it  is  supposed  to  be  created  a  body 
politic  where  before  had  existed  only  an  unorgan- 
ized aggregate  of  men,  or,  at  most,  merely  a  social 
body. 

By  contract  as  used  in  the  first  sense,  the  legiti- 
macy of  existing  governments  is  determined,  and 
the  validity  of  the  titles  of  their  rulers  established. 
As  understood  in  the  second  sense,  the  origin  of 
the  State,  that  is,  of  the  political  power  itself,  is 
explained.  We  shall  treat  briefly  and  separately  of 
the  history  of  the  Contract  Theory  as  understood 
in  these  two  ways,  and  first  of  the  Governmental 
Compact. 

The  Governmental  Compact.  —  The  idea  of  resting 
the  authority  of  rulers  upon  an  original  compact 
with  their  subjects  is  of  very  ancient  origin,  occur- 
ring not  only  in  the  writings  of  political  philoso- 
phers, but  apparently  exhibited  in  frequent  histori- 
cal instances. 

As  regards  its  use  in  theory,  we  find  a  suggestion 
of  it  in  Plato ;  ^  the  Roman  jurists  universally  rested 
the  power  of  the  Emperor  upon  an  original  explicit, 
or  subsequent  implicit,  consent  of  the  populace ;  and 
mediaeval  and  early  modern  writers  generally  took 

*  Rnpuhlic,  p.  35f),  and  Crito,  \>.  51  (Jowett's  translation).  Cited 
by  Professor  Kitchie  in  the  Pol.  ScL  Quar.  VI.  p.  057. 


THE  ORIGIN  OF  THE   STATE  57 

this  view.  In  our  history  of  the  Divine  Theory  we 
have  already  spoken  of  the  manner  in  which  the 
idea  of  national  law  supplanted  that  of  divine  law 
as  the  basis  of  political  authority.  This  predication 
of  a  State  of  Nature  governed  by  Natural  Law  logi- 
cally necessitated  the  introduction  of  some  sort  of 
contract  or  agreement  whereby  civil  rule  might  be 
substituted  for  natural  freedom. 

As  for  historical  instances  in  which  a  govern- 
mental compact  appears,  or  is  alleged  to  have  been 
entered  into,  we  have  that  of  King  David  making 
a  covenant  with  the  Elders  before  the  Lord;^  the 
formula  used  by  the  nobles  in  the  election  of  the 
King  of  Aragon,  mentioned  by  Hallam  ^ ;  and  Locke 
quotes^  the  words  of  even  King  James  himself,  con- 
tained in  a  speech  to  Parliament,  in  1609,  in  which 
the  Contract  Theory  is  plainly  expressed.  The  idea 
was  also  prominent  in  the  contests  over  investitures ; 
and  numerous  historical  instances  abounded  in  Ger- 
man history  in  which  political  compacts  had  been 
made  between  the  several  Estates. 

But  it  is  hardly  worth  while  to  attempt  to  enu- 
merate more  instances  of  this  sort.  The  fact  is,  that 
the  whole  feudal  system  was  saturated  with  ideas  of 
contract.      Thus,  as  says  Sir  Henry  Maine :    "  The 


1  n.  Samuel  v.  3. 

2  Middle  Ages,  Vol.  I.  Chap.  II.  The  form  being  :  ""We  who  are  as 
good  as  you  choose  you  for  our  king  and  lord,  provided  that  you 
observe  our  laws  and  privileges;  and  if  not,  not." 

8  Two  Treatises  of  Government,  Bk.  II.  §  200.  See  especially  a  very 
able  article  upon  "  The  Social  Contract  Theory,"  contributed  by  Pro- 
fessor D.  G.  Ritchie  to  the  Pol.  Sci.  Quar.  December,  1891. 


58  THE  NATURE  OF  THE  STATE 

earliest  feudal  communities  were  neither  bound 
together  by  mere  sentiment  nor  recruited  by  a 
fiction.  The  tie  which  united  them  was  a  Contract, 
and  they  obtained  new  associates  by  contracting 
with  them.  The  relation  of  the  lord  to  the  vassals 
had  originally  been  settled  by  express  engagement, 
and  a  person  wishing  to  engraft  himself  in  the 
brotherhood  by  commendation  or  infeudation  came 
to  a  distinct  understanding  as  to  the  conditions  on 
which  he  was  to  be  admitted.  It  is  therefore  the 
sphere  occupied  in  them  by  Contract  which  princi- 
pally distinguishes  the  feudal  institutions  from  the 
unadulterated  usages  of  primitive  races.  The  lord 
had  many  of  the  characteristics  of  a  patriarchal 
chieftain,  but  his  prerogative  was  limited  by  a 
variety  of  settled  customs  traceable  to  the  express 
conditions  which  had  been  agreed  upon  when  the 
infeudation  took  place."  ^ 

Absolutists  and  their  opponents  alike  held  the 
thesis  of  an  original  sovereign  capacity  of  the  peo- 
ple, and  the  transfer  of  this  power  to  their  rulers 
by  a  compact.  The  point  at  issue  was  as  to  the 
character  and  scope  of  this  compact. 

Upon  the  one  side  it  was  held  that  the  surrender 
of  this  supreme  power  by  the  people  was  necessarily 
entire,  and  resulted  in  a  total  and  irrevocable  alien- 
ation of  their  political  rights.  This  was  the  view 
held  by  the  Eoman  jurists,  by  Suarez  and  other 
Jesuitical  writers,  and  later,  as  we  shall  see,  by 
Grotius  and  Pufendorf . 

1  Ancient  Law,  p.  353. 


THE   ORIGIN   OF   THE   STATE  59 

Upon  the  other  side,  it  was  maintained  that  this 
governmental  part  effected  nothing  more  than  a 
delegation  of  power  to  the  rulers,  such  power  to 
be  used  by  them  only  for  the  purposes  for  which 
granted,  and  liable  to  be  recalled  upon  being 
misused. 

Suarez,  whose  development  of  the  idea  of  Sover- 
eignty was  especially  profound  for  his  time,  likens 
the  birth  of  the  State  to  that  of  a  child,  and  from 
that  analogy  derives  its  necessarily  absolute  character. 
Just  as  man,  says  he,  is  free  and  has  full  power  over 
all  his  members,  as  soon  as  he  exists,  so  is  the  polit- 
ical body.  Just  as  the  father  of  the  child  only  gives 
to  it  existence,  while  God  gives  it  freedom,  reason, 
and  power,  so  the  Sovereignty  of  the  community  is 
created  by  the  free  will  of  men  unitmg ;  and,  just  as 
the  father  can  procreate  the  child  or  not,  as  he  sees 
fit,  but  if  created,  cannot  deny  it  full  power  and  free- 
dom; so,  likewise,  the  community  may  or  may  not 
create  the  body  politic  at  its  option,  but  when  created 
cannot  refuse  it  freedom  from  all  control.  Again, 
Suarez  likens  the  temporal  powers  of  the  prince 
to  the  spiritual  power  of  the  Pope.  The  sovereign 
pontiff,  he  says,  although  holding  his  power  from 
God  is  able  to  abdicate  it,  and,  in  the  same  way,  the 
republic,  though  receiving  the  legislative  (i.e.  sover- 
eign) power  from  God,  is  able  to  abandon  it,  if  it  see 
fit,  and  to  transfer  it  to  another  person.^     Grotius 

1  Tractatus  de  lerjibus  et  legislatore,  Bk.  III.  Chap.  III.  Cf.  Gierke, 
Althitsius  u.  die  Entivicklung  der  naturrechtlichen  Staatstheorien,  pp.  67 
et  seq. 


60  THE  NATURE   OF   THE   STATE 

endeavored  to  maintain  the  possibility  of  a  people 
surrendering  its  Sovereignty  without  reservation  or 
power  of  revocation,  upon  the  ground  that  the  con- 
quered may  purchase  their  lives  at  the  hands  of  their 
conquerors  by  an  acceptance  of  political  slavery,  — 
a  doctrine  that  excites  the  especial  indignation  of 
Rousseau,  who  clearly  shows  the  impossibility  of 
founding  a  "right"  of  control  upon  such  a  basis, 
not  to  speak  of  the  false  principle  of  international 
law  that  it  contains.^ 

By  those  whose  views  differed  from  the  above,  it 
was  variously  held,  either  that  it  was  inherently 
impossible  for  a  people  to  alienate  its  Sovereignty ; 
or,  that,  if  it  could  be  done,  the  presumption  would 
be,  in  absence  of  any  exact  knowledge  of  such  a 
compact,  that  the  surrender  of  power  would  be 
coupled  with  the  condition  that  its  exercise  should 
be  directed  to  the  general  welfare  of  the  community. 

In  accordance  with  these  views  we  find  many  of 
the  political  discussions  of  these  centuries  turning 
upon  such  points  as  the  power  of  the  people  to  offer 
resistance  to  tyrants  absque  titulo  and  to  tyrants  ab 
exercitio,  that  is,  to  tyrants  without  legitimate  title  to 
power,  and  to  those  who,  though  possessed  of  proper 
title,  exercise  their  control  in  an  oppressive  manner. 
The  general  view  held  was,  that  towards  tyrants  of 
the  first  class  both  natural  right  and  civil  right  per- 
mitted resistance,  as  there  Avas  really  no  compact  on 
the  part  of  the  people  with  them.  But  as  regards 
those  of  the  second  class,  views  differed,  some  liold- 

1  The  Social  Contract,  Bk.  I.  Chap.  IV. 


THE   ORIGIN  OF  THE   STATE  61 

ing  tliat  citizens  were  individually  bound,  but  that 
collectively  they  had  the  riglit  of  resistance  ;  while 
others  held  that  implicit  obedience  was  in  all  cases 
demanded. 

Reg;ardino;  the  school  of  writers  who  would  have 
limited  the  power  of  kings,  we  shall  speak  further 
when  we  come  to  consider  the  development  of  the 
idea  of  "  Popular  Sovereignty." 

The  Social  or  Political  Compact. — In  accepting 
the  contractual  origin  of  governments,  even  the  ab- 
solutists had  to  concede  an  original  sovereign  power 
of  the  people ;  for  the  people  must,  of  course,  have 
first  had  that  which  they  are  conceived  as  granting 
away.  But  this  surrender  of  power  could  only  be 
imagined  as  being  performed  by  a  community  acting 
as  a  single  body  in  a  corporate  capacity.  That  is 
to  say,  it  was  necessary  that  it  should  first  assume 
the  character  of  a  legal  subject.  Hence,  it  was  ej,rly 
agreed  that  a  given  aggregate  of  men  must  first  con- 
stitute a  single  social  or  political  body,  as  distin- 
guished from  a  mere  horde  or  arithmetical  sum  of 
persons,  before  they  could  contract  with  the,  particu- 
lar rulers  to  whom  the  political  power  was  to  be 
given.  It  thus  became  necessary  to  account  for  the 
manner^in.which  this  transition  from  a  sum  of  indi- 
viduals to  a  united  community  yras  effected. 

In  the  earlier  and  more  theological  times,  society 
was  held  by  some  to  be  as  much  a  direct  crea- 
tion of  God  as  was  man  himself.  In  general, 
however,  God  was  considered  simply  as  the  causa 
remota,  and  Nature,  or  the  ''instinctive  sociability_"„p^ 


62  THE  NATURE   OF  THE   STATE 

man  viewed  as  the  proximate  cause.  That  is  to  say, 
the  Aristoteliandoctrine  was  maintained.  .  This  was 
the  _general  yiewjuntil  the  end  of  the  sixteenth 
century.  We  thus  find  no  mention  of  an  original 
Social  Compact  in  the  writings  of  Bodin,  the  body 
politic  being  considered  by  him  as  an  aggregation 
of  families.  Nor  did  the  Monarchoinachi  advance 
beyond  this  point. 

The  first  writer  upon  the  Continent  to  make 
the  idea  of  an  original  Social  Compact  a  neces- 
sary antecedent  to  the  Governmental  Compact  was 
Johannes  Althusius,  who  wrote  at  the  beginning  of 
the  seventeenth  century.  This  idea  he  fully  devel- 
oped and  made  a  constructive  principle  in  his  sys- 
tem ;  applying  it  also  to  the  smaller  social  units, 
and  even  to  the  family.^ 

In  England,  the  first  definite  statement  that  we 
find  of  the  Social  Compact  is  in  the  writings  of  an 
English  clergyman.  In  his  Ecclesiastical  Polity, 
published  in  1594,  Richard  Hooker  attempted  the 
defence  of  the  established  church  of  England,  by 
denying  that  the  church  was  necessarily  subject  to 
direct  divine  regulation  in  all  matters ;  but  that  for 
its  government  laws  might  be  made  by  men,  so  long 
as  they  were  not  contrary  to  the  Scriptures.  In  sus- 
taining this  thesis,  he  was  led  to  an  inquiry  regarding 
the  origin  of  all  authority,  and  found  it  in  the  con- 
sent of  the  governed.  A  pre-civic  condition  of  man 
was  distinctly  premised,   and,  to   escape  from  this 

^  Politica  methodice  digesta  alque  exemplis  sacris  et  profanix  illustrata, 
pub.  in  1G03. 


THE  ORIGIN  OF  THE  STATE  63 

state,  which  was  one  of  lawlessness  and  war,  the 
Social  Compact  was  entered  into.  Hooker  did  not 
follow  out  to  its  various  consequences  the  theory 
thus  advanced,  but  left  this  task  to  his  successors 
Hobbes,  Locke,  and  Rousseau. 

The  full  acceptance  of  the  Social  Compact  theory 
upon  the  Continent  was  secured,  when  Hugo  Grotius 
adopted  it  as  one  of  the  bases  of  his  work  De  jure 
belli  et  pads;  in  which  he  was  followed  by  Pu- 
fendorf.  This  latter  writer,  however,  interpolated 
between  the  social  and  governmental  compacts  a 
"resolution"  of  the  people  whereby  was  determined 
the  foi'm  of  government  to  be  established,  i.e., 
whether  monarchic,  aristocratic,  or  democratic.^ 

But  in  none  of  the  works  of  the  writers  whom 
we  have  mentioned  was  there  any  attempt  to  de- 
duce the  various  results  that  logically  follow  from 
the  premises  assumed.  This  was  first  done  by 
the  Englishmen  Hobbes  andJLgcke,  and  the  Gen- 
evese  Frenchman  Rousseau.  Their  systems  we 
shall  now  consider  with  some  degree  of  particular- 
ity, as    in  them  we  shall  be  able    to    find,  though 

^  De  jure  naturae  et  gentium,  pub.  in  1672,  and  De  officio  hominis  et 
civis.  An  advance  made  by  Pufendorf  upon  Grotius  and  Hobbes  was 
as  to  the  distinction  to  be  made  between  the  act  or  will  of  the  sov- 
ereign when  acting  as  such,  and  when  as  a  private  individual;  and 
the  consequent  possibility  of  a  subject  suffering  injustice  at  the  hands 
of  the  sovereign.  Furthermore,  he  practically  limits  the  power  of  the 
ruler  in  the  assertion  that  his  rule  to  be  legitimate  must  be  orderly 
and  for  the  general  good,  and  hence  differs  from  Hobbes,  who,  as  we 
shall  see,  would  say  that  atvj  act  of  the  Sovereign,  however  capricious, 
irregular,  or  arbitrary,  is  entirely_  legal.  The  views  of  Pufendorf  were 
cIosely~f6TIowed  by  Thomasius  in  his  Fundamenta  juris  naturalis  ex 
sensu  communi  deducta,  and  his  Institutiones  jurisprudentice. 


64  THE  NATURE  OF  THE  STATE 

mixed  with  many  errors,  many  of  the  components 
of  a  correct  system  of  political  philosophy.  In  thus 
carefully  sifting  these  principles  from  the  chaff  by 
which  they  are  surrounded,  we  shall  be  at  the 
same  time  advancing  the  constructive  portion  of 
our  work. 

Hobbes. — In  the  writings  of  the  philosopher 
Hobbes  we  come  to  clearly  expressed  principles. 
Conceiving  the  State  of  Nature  to  be  one  of  war — 
homo  homini  lupus — in  wLhichjthere,.,exlst  no  legal 
rights  either  of  person  or  property,  but  only  natural 
rights  founded  upon  morality  and  utility,  Hobbes 
based  the  State  upon  a  compact  between  individ- 
uals, whereby  each  of  them  gave  up  a  part  of  his 
own  natural  liberty  in  order  that  all  might  be  pro- 
tected by  the  strength  of  all.     Thus,  says  he :  — 

The  State  is  established  by  a  "  covenant  of  every  man  with 
every  man,  in  such  manner,  as  if  every  man  should,  say  to 
every  man  'I  authorize  and  give  up  my  right  of  governing 
myself,  to  this  man,  or  to  this  assembly  of  men,  on  this  condi- 
tion, that  thou  give  up  thy  right  to  him,  and  authorize  all  his 
actions  in  like  manner.'  This  done,  the  multitude  so  united 
in  one  person  is  called  a  'commonwealth,'  in  Latin  civitas. 
This  is  the  generation  of  that  great  *  leviathan/  or  rather,  to 
speak  more  reverently,  of  that  '  mortal  God,'  to  which  we  owe, 
under  the  'immortal  God,'  our  peace  and  defence.  For  by 
this  authority,  given  him  by  every  particular  man  in  the  com- 
monwealth, he  hath  the  use  of  so  much  power  and  strength, 
conferred  on  him,  that  by  terror  thereof,  he  is  enabled  to  per- 
form the  wills  of  them  all,  to  peace  at  home,  and  mutual  aid 
against  their  enemies  abroad.  And  in  him  consisteth  the  es- 
sence of  the  commonwealth,  which,  to  define  it,  is  one  per- 
son, of  whose  acts  a  great  multitude,  by  mutual  covenants  one 


THE  ORIGIN  OF  THE   STATE  65 

with  another,  have  made  themselves  every  one  the  author,  to 
the  end  he  may  use  the  strength  and  means  of  them  all,  as  he 
shall  think  expedient,  for  their  peace  and  common  defence. 

"  And  he  that  carrieth  this  person  is  called  '  sovereign,'  and 
said  to  have  '  sovereign  power ' ;  and  every  one  besides,  his 
subject."^ 

From  this  contract  the    rights  of  absolute  mon- 
archy are  deduced.      The  contract  once  made,  not 
only  does  the  power  of  the  ruler  become  absolute, 
but  all  right  of  revolution  on  the  part  of  the  people     "^ 
is,  according  to  Hobbes,  forever  lost. 

"They  [he  continues]  that  have  already  instituted  a  com- 
monwealth, being  thereby  bound  by  covenant  to  own  the 
actions  and  judgments  of  one,  cannot  lawfully  make  a  new 
covenant  amongst  themselves  to  be  obedient  to  any  other,  in 
anything  whatsoever,  without  his  permission.  And  therefore, 
they  that  are  subjects  to  a  monarch,  cannot  without  his  leave 
cast  off  monarcliy,  and  return  to  the  confusion  of  a  disunited 
multitude ;  nor  transfer  their  person  from  him  that  beareth  it, 
to  another  man,  or  other  assembly  of  men ;  for  they  are  bound 
every  man  to  every  man,  to  own,  and  be  reputed  author  of  all, 
that  he  that  already  is  their  sovereign,  shall  do,  and  judge  fair 
to  be  done ;  so  that  any  one  man  dissenting,  all  the  rest  should 
break  their  covenant  made  to  that  man,  which  is  injustice :  and 
they  have  also  every  man  given  the  sovereignty  to  him  that 
beareth  their  person;  and  therefore  if  they  depose  him  they 
take  from  him  that  which  is  his  OA\ni,  and  so  again  it  is  in- 
justice. Besides,  if  he  that  attempteth  to  depose  his  sover- 
eign be  killed,  or  punished  by  him  for  such  attempt,  he  is 
author  of  his  own  punishment,  as  being  by  the  institution, 
author  of  all  his  sovereign  shall  do :  and  because  it  is  injustice 
for  a  man  to  do  anything  for  which  he  may  be  punished  by 
his  own  authority,  he  is  also  upon  that  title  unjust.     And 

1  Leviathan,  ]\Ioiley  ed.  p.  S 1. 


66  THE  NATURE   OF  THE   STATE 

whereas  some  men  have  pretended  for  their  disobedience  to 
their  sovereign,  a  new  covenant,  made  not  with  men,  but  with 
God;  this  also  is  unjust:  for  there  is  no  covenant  withjGU>d 
but  by  mediation  of  somebody  that  representeth  God's  person ; 
which  none  doth  but  God's  lieutenant,  who  hath  the  sover- 
eignty under  God.  But  this  pretence  of  covenant  with  God 
is  so  evident  a  lie,  even  in  the  pretenders'  own  consciences, 
that  it  is  not  only  an  act  of  an  unjust,  but  also  of  a  vile  and 
unmanly  disposition. 

"  Secondly,  because  the  right  of  bearing  the  person  of  them 
all  is  given  to  him  they  make  sovereign,  by  covenant  only  of 
one  to  another,  and  not  of  him  to  any  of  them,  there  can  hap- 
pen no  breach  of  covenant  on  the  part  of  the  sovereign :  and 
consequently  none  of  his  subjects,  by  any  pretence  of  forfeit- 
ure, can  be  freed  from  his  subjection.  That  he  which  is  made 
sovereign  maketh  no  covenant  with  his  subjects  beforehand, 
is  evident ;  because  either  he  must  make  it  with  the  whole 
multitude  as  one  party  to  the  covenant ;  or  he  must  make  a 
several  covenant  with  every  man.  With  the  whole,  as  one 
party  it  is  impossible ;  because  as  yet  they  are  not  one  person ; 
and  if  he  makes  so  many  several  covenants  as  there  be  men, 
those  covenants  after  he  hath  the  sovereignty  are  void;  be- 
cause what  act  soever  can  be  pretended  by  any  one  of  them  for 
breach  thereof  is  the  act  both  of  himself,  and  of  all  the  rest, 
because  done  in  the  person,  and  by  the  right  of  every  one  of 
them  in  particular.  Besides,  if  any  one,  or  more  of  them,  pre- 
tend a  breach  of  the  covenant  made  by  the  sovereign  at  his 
institution ;  and  others,  or  one  other  of  his  subjects,  or  him- 
self alone,  pretend  there  was  no  such  breach,  there  is  in  this 
case  no  judge  to  decide  the  controversy ;  it  returns  therefore 
to  the  sword  again;  and  every  man  recovereth  the  right  of 
protecting  himself  by  his  own  strength,  contrary  to  the  design 
they  had  in  the  institution.  It  is,  therefore,  vain  to  grant  sov- 
ereignty by  way  of  precedent  covenant.  The  opinion  that  any 
monarch  receiveth  his  power  by  covenant,  that  is  to  say,  on  con- 
dition, proceedeth  from  want  of  understanding  this  easy  truth, 
that  covenants  being  words  and  breath,  have  no  force  to  oblige, 


THE   ORIGIN   OF  THE   STATE  67 

contain,  constrain,  or  protect  any  man,  but  what  it  has  (sic)  from 
the  public  swoxxl :  that  is,  from  the  united  hands  of  that  man, 
or  assembly  of  men  that  hath  the  sovereignty,  and  whose  ac- 
tions are  avouched  by  them  all,  and  performed  by  the  strength 
of  them  all,  in  him  united.  .  .  .  Because  every  subject  is  by 
this  institution  author  of  all  the  actions,  and  judgments  of  the 
sovereign  instituted,  it  follows,  that  whatsoever  he  doth,  it  can 
be  no  injury  to  any  of  his  subjects ;  nor  ought  he  to  be  by  any 
of  them  accused  of  injustice.  For  he  that  doth  anything  by 
autliority  from  another,  doth  therein  no  injuiy  to  him  by 
whose  authority  he  acted." ' 

From  this  form  of  dominion,  termed  "sovereignty 
by_  institution,''  Hobbes  next  turns  to  dominion  ac- 
quired by  conquest  or  victory  in  war.  "  This  power 
of  rule  is  acquired,"  says  he,  "  when  the  vanquished, 
to  avoid  the  present  stroke  of  death,  covenanteth 
either  in  express  words,  or  by  other  sufficient  signs 
of  the  will,  that  so  long  as  his  life  and  the  liberty 
of  his  body  is  allowed  him,  the  victor  shall  have 
the  use  thereof  at  his  pleasure.  ...  It  is  not,  there- 
fore, the  victor  that  givetli  the  right  of  dominion 
over  the  vanquished  but  his  own  covenant.  ...  In 
sum,  the  rights  and  consequences  of  both  paternal 
and  despotical  dominion "  [i.e.  dominion  by  con- 
quest) "  are  the  very  same  with  those  of  a  sover- 
eign by  institution.""^ 

It  would  thus  seem  that,  setting  aside  the  primi- 
tive contract,  Hobbes  would  legitimize  existing 
governments  upon  the  basis  of  force.  Indeed,  he 
becomes  still  more  explicit  in  regard  to  this  in  treat- 
ing of  the  cases  in  which  the  subjects  are  absolved 

1  Leviathan,  Chap.  XVIII.  2  jjem,  Chap.  XX. 


68  THE   NATURE   OF  THE   STATE 

from  their  obedience  to  the  sovereign.  Thus  he 
says,  "The  obligation  of  subjects  to  the  sovereign 
is  understood  to  last  as  long,  and  no  longer,  than 
the  power  lasteth,  by  which  he  is  able  to  protect 
them.  For  the  right  men  have  by  nature  to  pro- 
tect themselves,  when  none  else  can  protect  them, 
can  by  no  covenant  be  relinquished."  He,  how- 
ever, saves  himself  from  the  obvious  inconsistency 
by  basing  the  duty  of  the  citizens'  obedience  upon 
the  two  contradictory  principles  of  force  and  of 
covenant,  by  impliedly  holding  that  this  dissolution 
of  the  sovereign  power  can  only  come  from  foreign 
force  or  voluntary  act  of  the  ruler,  and  never  right- 
fully from  the  citizens  themselves,  who  are  rigidly 
bound  by  the  terms  of  their  own  contract. 

Spinoza^  who  accepted  the  contractual  theory  of 
the  origin  of  political  authority,  disregarded  the 
above  distinction  and  founded  the  right  of  the  de 
facto  government  to  rule,  upon  its  power  to  maintain 
itself  against  force  from  any  quarter  whatsoever. 
Thus,  if  it  be  asked  as  to  the  difference  between  his 
system  and  that  of  Hobbes,  it  may  be  replied,  that 
that  which  distinguishes  his  opinions  from  those  of 
Hobbes  is,  that  he  preserves  the  natural  law,  even 
in  the  civil  state,  and  accords  right  to  the  sovereign 
only  in  proportion  to  his  actual  power. ^ 

In  other  words,  Spinoza  held,  and  logically,  as  we 
shall  see,  that  a  compact  entered  into  between  indi- 
viduals  in  a  then   State  of  Nature  could  have  no 

^  Tractatus  puUticus,  Chap.  11.  Tractul us  theologlco  jwliticus,  Cha,^. 
XVI. 


THE  ORIGIN  OF  THE   STATE  69 

efficiency  in  giving  greater  legal  or  moral  validity  to 
rules  based  on  it,  than  such  rules  would  have  in  an 
entirely  unpolitical  state  of  society.     Hobbes,  how- 
ever,   though    his    contractual    thesis     would    not 
warrant   it,  made    a   clear    distinction    between   so- 
called  natural  law,  and  civil   or   political  law,  and 
thus^  laid  the  foundation  for  that  system  of  Analyt- 
ical  Jurisprudence  that  was   afterwards   elaborated 
by  Bentham  and  Austin.     "Natural  laws"  (which 
he  identifies  also  with  divine  laws),  says  he,  "  doth 
always  and  everywhere  oblige  in  the  internal  court 
or  that  of  conscience  ;  but  not  always  in  the  exter- 
nal court,  but  then  only  when  it  may  be  done  with 
safety."^     "Civil  law,"  on  the  contraryj  says  he^,  "is 
to  every  subject  those  rules  which  the  commonwealth 
hath   commanded   him,  by  word,  writing,  or   other 
sufficient  sign  of  the  will  to  make  use  of,  for  the 
distinction  of   right  and  wrong;   that  is  to  say,  of 
what.js_contrary,  and  what  is  not  contrary  to  the 
rule."^     "The  law  of  nature  and  the    civil   law," 
he  continues,"  contain  each  other  and  are  of  equal  ex- 
tent.   For  the  laws  of  nature,  which  consist  in  equity, 
justice,  gratitude,  and  other  moral  virtues  on  these 
depending,  in  the  condition  of  mere  nature,  .  .  .  are 
not  properly  laws  but  qualities  that  dispose  men  to 
peace  and  obedience.     When  the  commonwealth  is 
once  settled,  then  are  they  actual  laws,  and  not  be- 
fore ;   as  being  then  the  commands  of  the  common- 

1  Philosophical    Rudiments     Concerning    Government    and    Societi/, 
Chap.    III. 

'^  Leviathan,  Chap.  XXVI. 


70  THE  NATURE   OF   THE  STATE 

wealth;  and  therefore  also  civil  laws;  for  it  is 
the  sovereign  power  that  obliges  men  to  obey  tbem. 
.  .  .  But  every  subject  in  a  commonwealth  hath 
covenanted  to  obey  the  civil  law ;  either  one  with 
another,  as  when  they  assembled  to  make  a  com- 
mon representative,  or  witli  the  representative  it- 
self one  by  one,  when  subdued  by  the  sword  they 
promise  obedience,  that  they  may  receive  life ;  and 
therefore  obedience  to  the  civil  law  as  part  also  of 
the  law  of  nature.  Civil  and  natural  law— are  not 
different  kindS;,  but  different  parts  of  law ;  whereof 
one  part  being  written,  is  called  civil,  the  other 
unwritten,  called  natural.  But  the  right  of  nature, 
that  is,  the  natural  liberty  of  man,  may  by  the  civil 
law  be  obliged  and  restrained ;  nay,  the  end  of 
making  laws  is  no  other  but  such  restraint ;  with- 
out the  which  there  cannot  be  any  peace.  And  law 
was  brought  into  the  world  for  nothing  else,  but  to 
limit  the  natural  liberty  of  particular  men,  in  such 
manner  as  they  might  not  hurt  but  assist  one 
another,  and  join  together  against  a  common 
enemy."  ^  Furthermore,  "  All  laws,  writterijand  un- 
written, have  their  authority  and  force  from  the 
will  of  the  commonwealth."  ...  "  By  the  virtue 
of  natural  law  which  forbids  breach  of  covenant, 
the  law  of  nature  commands  us  to  keep  all  the 
civil  laws.  For  where  we  are  tied  to  obedience 
before  we  know  what  will  be  commanded  of  us  " 
{i.e.  by  the  original  compact),  "  there  we  are  univer- 
sally tied  to  obey  in  all  things.     Whence  it  follows 

^  Leviathan,  Chap.  XXVI. 


THE   ORIGIN  OF   THE  STATE  71 

that  no  civil  law  whatsoever,  which  tends  not  to  a 
reproach  of  the  Deity  (in  respect  of  whom  cities 
themselves  have  no  right  of  their  own,  and  cannot 
be  said  to  make  laws),  can  possibly  be  against  the 
law  of  nature.  For  though  the  law  of  nature  for- 
bids theft,  adultery,  etc. ;  yet  if  the  civil  law  com- 
mand us  to  invade  anything,  that  invasion  is  not 
theft,  adultery,  etc."  ^ 

The  sovereign,  then,  possesses  unlimited  power ; 
and  no  matter  how  arbitrarily  or  oppressively  this 
power  be  exercised,  obedience  on  the  part  of  the 
people  is  demanded.  To  resist  the  sovereign  is  to 
return  to  a  state  of  anarchy.  The  rights  trans- 
ferred to  the  sovereign  cannot  be  withdrawn  with- 
out his  consent;  for,  though  not  a  party  to  the 
contract  he  has  obtained  indefeasible  rights  under 
it.  There  is  no  contract  between  the  people  and 
the  sovereign,  but  only  of  all  between  all,  in  which 
contract  there  is  a  sovereign  necessarily  established. 
That  is  to  say,  Sovereignty,  which  before  the  union 
did  not  exist,  springs  into  being  of  necessity  by 
the  very  act  of  union^,  and  he  to  whom  this  author- 
ity is  then  given,  is  henceforth  the  sovereign. 

In  his  Leviathan  Hobbes  is  not  explicit  as  to  just 
the  manner  in  which  this  supreme  power  is  conferred 
upon  this  specific  person  or  these  specific  persons. 
In  his  De  Corpore  Folitico,  however,  he  is  more  defi- 
nite. Of  the  various  forms  of  government,  ''the 
first  in  order  of  time,"  says  he,  '"  is  democracy;  and 
it  must  be  so  of  necessity,  because  an  aristocracy  and 

^  Philosophical  Rudiments,  Chap.  XTV.  §  10. 


72  THE  NATURE  OF  THE  STATE 

a  monarchy  require  the  nomination  of  persons  agreed 
upon,  which  agreement  in  a  great  multitude  of  men 
must  consist  in  the  consent  of  the  major  part ;  and 
where  the  votes  of  the  major  part  involve  the  votes 
of  the  rest  there  is  actually  a  democracy."  ^  And 
again,  he  says,  "  And  seeing  a  democracy  is  by  insti- 
tution, the  beginning  both  of  aristocracy  and  mon- 
archy, we  are  to  consider  next  how  aristocracy  is 
derived  from  it.  When  the  particular  members  of 
the  commonwealth,  growing  weary  of  attendance  at 
public  courts  as  dwelling  far  off,  or  being  attentive 
to  their  private  businesses,  and  withal  displeased 
with  the  government  of  the  people,  assemble  them- 
selves to  make  an  aristocracy,  there  is  no  more 
required  to  the  making  thereof  but  putting  to  the 
question  one  by  one  the  names  of  such  men  as  it 
shall  consist  of,  and  assenting  to  their  election  ;  and 
by  plurality  of  vote  to  transfer  that  power,  which 
before  the  people  had,  to  the  number  of  men  so 
named  and  chosen."' 

When  so  chosen,  however,  this  aristocracy  has 
the  same  unlimited  and  illimitable  rights  as  the 
original  sovereign.  "  And  from  this  manner  of  erect- 
ing an  aristocracy,"  Hobbes  continues,  "it  is  mani- 
fest that  the  few,  or  ojjtimates,  have  entered  into 
no  covenant  with  any  of  the  particular  members  of 
the  commonwealth,  whereof  they  are  sovereign ;  and 
consequently  cannot  do  anything  to  any  private  man, 
that  can  be  called  injury  to  him,  howsoever  their 
acts  be  wicked  before  Almighty  God,  according  to 

»  Chap.  U.  a  Idem. 


THE  ORIGIN  OF  THE   STATE  73 

that  which  has  been  said  before.  Further,  it  is  im- 
possible that  the  people,  as  one  body  politic,  should 
covenant  with  the  aristocracy  or  optimates,  on  whom 
they  intend  to  transfer  their  sovereignty.  For  no 
sooner  is  the  aristocracy  erected  but  the  democracy 
is  annihilated  and  the  covenants  made  unto  them 
void."  ^ 

Without  proceeding  at  this  point  to  consider 
the  historical  or  legal  impossibility  of  such  an  origi- 
nal compact  as  Hobbes  predicates,  it  will  be  seen 
that  (the  cardinal  fault  of  this  writer  is  the  utter 
failure  to  distinguish  between  the  two  conceptions  of  / 
the  ^afe "and  Government,  —  between  thejpvereign 
power  itself  and  the  personal  hands  into  which  its 
exercise  is  entrusted.  That  is,  while  he  rightfully 
holds  that  the  birth  of  Sovereignty  is  synchronous, 
with"  that'  of  the  body  politic^  he  does  not  sepa- 
rate this  event  from  the  delegation  of  this  power, 
to  governmental  agencies,  —  an  act  independent 
of  arid  posterior  to  it.  Thus  he  says  in  the 
sentence  last  quoted,  that  it  is  impossible  that  the 
demos  should  covenant  with  the  aristocracy  to  whom 
it  is  about  to  hand  the  sovereign  power,  because 
aristocracy  once  established  the  democracy  is  annihi- 
lated, and  hence  the  agreement  that  might  have  been 
made  to  it  lapses.  He  does  not  see  that  democracies 
and  aristocracies  are  but  forms  of  government,  and 
that  the  change  from  the  one  to  the  other  or  to 
monarchy  involves  no  death  or   re-creation  of   the 

^  Idem. 


74  THE  NATURE  OF  THE  STATE 

Sovereignty,  that  is  to  say,  of  the  State.  Concerning 
his  views  as  to  the  impossibility  of  subjecting  Sover- 
eignty to  legal  limitation,  and  as  to  the  distinguishing 
of  natural  and  civil  law,  —  these  we  shall  find  to  be 
correct,  though  based  upon  an  untenable  theory. 
Aside  from  this,  the  one  trouble  in  his  political  system 
is  that  everywhere  this  legal  absolutism  of  the  State 
is  confounded  with  governmental  absolutism,  —  the 
subjection  of  the  people  to  particular  rules  identified 
with  their  subordination  to  civil  authority. 

Locke.  —  Starting  with  the  premise  of  an  original 
non-civic  condition  of  mankind,  Locke  considered  this 
state  to  have  been  one  of  natural  equality  and  free- 
dom, and  the  individual  to  be  endowed  by  nature  with 
certain  rights ;  as,  for  example,  those  of  property 
and  self-defence.  The  origin  of  government  he  con- 
ceived to  have  been  by  a  compact  wherein  the 
individual  voluntarily  surrendered  into  the  hands 
of  a  general  authority  certain  rights  and  powers, 
whereby  his  remaining  liberties  and  rights  should  be 
protected  and  preserved.  The  State  is  thus  conceived 
as  created  to  protect  rights  already  in  existence. 
Moreover,  these  rights  (and  here  he  differs  funda- 
mentally from  Hobbes)  remain  in  the  individual 
even  after  the  contract,  and  have  the  same  bind- 
ing force  as  in  the  non-civic  State.  In  other  words, 
the  governing  power  created  is  in  no  case  absolute 
and  thenceforth  independent  of  the  individual  and 
his  rights,  but  is  limited  by  these  rights.  The 
power  of  the  ruling  authorities  is  a  fiduciary  one, 
^  and  when  abused  may  be  revoked  by  the  people  who 


>. 


/ 


THE   ORIGIN  OF  THE   STATE  75 

have  granted  it,'   Tims  says  Locke:  ^^The  State  of 
Nature  has  a  law  of   nature    to   govern   it,  which 
obliges  every  one  ;    and  reason,  which  is  that  law, 
teaches  all   mankind  who  will   but  consult  it,  that       V 
being  all   equal  and  independent,  no   one  ought  to 
harm  another  in  his  life,  health,  liberty,  or  posses- 
sions." ^  I  The   disadvantages    that   arise,  however, 
from  allowing  to  each  individual  the  power  of  de- 
termination and  enforcement  of  his  own  rights,  lead 
to  the  necessity  for  some  sort  of  control  that  shall 
act  as  a  common  arbiter  of  individual   rights,  and 
which   shall   be  endowed   with  sufficient   power   to 
enforce  its  decrees.    Men  are  thus  led  to  the  establish- 
ment of  a  political  authority.   "  Wherever,  therefore," 
says  Locke,  "  any  number  of  men  so  unite  into  one 
society  as  to  quit  every  one  his  executive  power  of 
the  law  of  nature,  and  to  resign  it  to  the  public, 
there,  and  there  only,  is  a  political  or  civil  society. 
And  this  is  done  wherever  any  number  of  men  in 
the  State  of  Nature  enter  into  society  to  make  one 
People,  one  body  politic  under  one  supreme  Govern- 
ment;   or  else  when  any  one  joins  himself  to,  and 
incorporates  with,  any  Government  already  made."  "^ 
"But  though  men  when  they  enter  into  society 
give  up  the  equality,  liberty,  and   executive  power 
they  had  in  the  State  of  Nature  into  the  hands  of  the 
society,  to  be  so  far  disposed  of  by  the  legislative  as 
the  good  of   the  society  shall  require,  yet  it  being 
only  with  an  intention  in  every  one  the  better  to 

1  Two  Treatises  of  Government,  Bk.  II.  Chap.  11. 

2  Idem,  Bk.  II.  §  89. 


76  THE   NATURE   OF  THE   STATE 

preserve  himself,  his  liberty  and  property  (for  no 
rational  creature  can  be  supposed  to  change  his  con- 
dition with  an  intention  to  be  worse),  the  power  of 
the  society  or  legislative  constituted  by  them  can 
never  be  supposed  to  extend  further  than  the  com- 
mon good,  but  is  obliged  to  secure  every  one's  prop- 
erty by  providing  against  those  three  defects  above 
mentioned  that  made  the  State  of  Nature  so  unsafe 
and  uneasy."  ^ 

"  Whensoever,  therefore,  the  legislative  shall  trans- 
gress this  fundamental  rule  of  society,  and  either  by 
ambition,  fear,  folly,  or  corruption,  endeavor  to  group 
themselves,  or  put  into  the  hands  of  any  other,  an 
absolute  power  over  the  lives,  liberties,  and  estates  of 
the  people ;  by  this  breach  of  trust  they  forfeit  the 
power  the  people  had  put  into  their  hands  for  quite 
contrary  ends,  and  it  devolves  to  the  people,  who 
have  a  right  to  resume  their  original  liberty,  and  by 
the  establishment  of  a  new  legislative  (such  as  they 
shall  think  fit)  provide  for  their  own  safety  and 
security,  which  is  the  end  for  which  they  are  in 
society."  ^ 

The  above  citations  are  sufficient  to  make  it  plain 
that  Locke  does  not  draw  the  line  between  moral 
and  civil  laws  with  the  same  degree  of  accuracy  that 
did  Hobbes.  He  nowhere  clearly  distinguishes  be- 
tween the  rights  a;rfJ~  obligations  ,  creoLted  by  the 
command  of  a  political  superior,  and  the  general 
moral  rights  and  duties  that  arise  independently 
of  a  common  authority.      Thus,  while  with  Hobbes 

1  Two  Treatises  of  Government,  Bk.  II.  §  131.         »  /jg,„^  Bk.  II.  §  222. 


THE   ORIGIN  OF  THE   STATE  77 

a  rule  commanded  by  the  governing  power  is  legally 
valid,  whatever  its  character,  when  judged  by  moral 
or  utilitarian  grounds ;  with  Locke,  it  has  but  a 
hypothetical  validity,  dependent  upon  its  consonance 
with  natural  rights  of  person  and  property.  In 
other  words,  while  Hobbes  could  not  conceive  of  an 
instance  in  which  the  person  or  persons  possessing 
the  sovereign  power  could  act  in  an  illegal  manner, 

.Xocka-CDuld  not  conceive  of  a  case  in  which jthe  ruler 
might  legally  oppress  his  people.     From  the  strictly 

~]uHstic  standpoint,  we  shall  see  that  Hobbes  was 
nearer  right  as  to  the  legal  omnipotence  of  the 
sovereign  power ;  but  what  he  did  not  see  was,  as 
we  have  already  said,  that  this  sovereign  power 
represents  the  will  of  the  State  rather  than  the  will 
of  the  individual  or  individuals  to  whom  the  govern- 
ing powers  are  entrusted ;  and  that  in  any  given 
case,  while  it  may  not  be  possible  to  place  a  legal 
limit  to  the  will  of  the  sovereign  State,  it  is  possi- 
ble to  limit  the  legal  competence  of  governmental 
agents.  In  oth£j_.wxnxlSjJbhatwhich  Locke  did  not 
sufficiently  recQgmze>.-jQr^  at  least  explicitly  state, 
was__tlie_j20ssiHlity__pjLjendowm  other 

governing  J^gents  with  such  power  as  would  enable 
them  to  oppress  the  people  in^aTstrictly  legal  manner ; 
and  that  therefore  the  right  of  revolution  against 
such  government  is  a  moral  rather  than  legal  right. 
In  so  far,  however,  as  Locke  recognized  that  rulers 
are  of  limited  powers,  and  act  in  but  a  representa- 
tive fiduciary  capacity,  he  made  an  enormous  advance 
over  Hobbes.     He  thus  prepared  the  way  for,  if  he 


78  THE   NATURE   OF  THE   STATE 

did  not  himself  reach,  the  full  distinction  between 
Government  and  State. 

Where  he  failed  was  in  not  sufficiently  distinguish- 
ing between  the  community  as  simply  a  social  aggre- 
gate, and  as  a  political  body ;  and  that  Sovereignty  in 
its  true  legal  sense  resides  in  the  latter  and  not  in  the 
former.  He  fully  recognized  that  a  government  is 
but  the  political  machinery  of  the  State,  and  public 
officials  but  agents  of  the  political  power,  but  he  did 
not  fully  appreciate  that  this  political  power  belongs 
not  to  society  as  such,  but  to  it  a,s  a  body  politic. 
Thus,  when  he  says  that  ''  there  remains  still  in  the 
people  a  supreme  power  to  remove  or  alter  the  legis- 
lative, when  they  find  the  legislative  act  contrary  to 
the  trust  imposed  in  them,"  the  context  shows  that 
he  does  not  recognize  that  this  right  of  a  community 
of  men  as  such  to  use  the  force  which  their  number 
gives  them  to  dictate  the  manner  in  which  their 
public  affairs  shall  be  administered,  is  not  a  legal  but 
a  moral  right;  and  that,  in  so  far  as  their  will  is 
expressed  in  ways  other  than  those  provided  for  by 
law,  it  is  not  the  will  of  the  State. 

As  we  shall  have  occasion  subsequently  to  main- 
tain, every  State  is  completely  organized  in  its  gov- 
ernment, and  therefore  the  aggregate  of  governmental 
powers  comprehends  in  its  entirety  the  State's  Sover- 
eignty. Therefore,  when  it  shall  be  said  that  gov- 
ernmental powers  are  capable  of  legal  limitation, 
reference  will  be  had  to  their  exercise  by  particular 
organs,  and  not  to  their  exercise  as  a  totality.  Hence 
it  follows  that  Sovereignty  may  be  exercised  only  in 


THE   ORIGIN  OF  THE   STATE 


79 


a  legal  manner,  that  is,  according  to  rules  prescribed 
by  existing  law.  In  one  of  his  closing  paragraphs, 
Locke  explicitly  says,  that  the  superior  "right"  of 
the  people  (impliedly,  as  organized  in  England)  to 
change  their  rulers  can  never  be  enforced  through  or 
by  means  of  the  then  existing  government,  but  he 
does  not  then  immediately  conclude,  as  he  should 
have  done,  that,  therefore,  such  act  cannot  be  an  act 
of  the  State,  which  can  only  operate  through  the 
governmental  apparatus  in  which  it  is  organized.  In 
curtailing  the  power  of  political  rulers,  Locke  in  fact 
limits  the  power  of  the  State.  Of  this  we  shall  speak 
at  greater  length  in  connection  with  the  nature  of 
Sovereignty  and  its  location  in  the  body  politic. 

Rousseau.  — ^In  the  writings  of  Rousseau,  the  doc-  \ 
trine  of  Popular  Sovereignty  was  carried  to  its  extreme 
extent,  —  to  an  extent  that  rendered  practically  im- 
possible the  existence  of  a  true^State.y'  The  distinc- 
tion between  State  and  Government  is  clearly 
made  (though  Government  has  with  him  a  more 
limited  meaning  than  that  which  we  have  ascribed 
to  it  ^) ;  but  that  between  the  Sovereignty  of  the  State 
and  the  power  of  the  people  as  a  community  is 
hopelessly  confused.  Thus,  while  he  makes  Govern- 
ment but  the  servant  for  executing  the  will  of  the 
State,  he  makes  this  will  practically  identical  with 
popular  demand.  The  permanence  of  all  Government 
and  its  authority  is  thus  practically  destroyed. 
While  Locke  limited  the  power  of  Government, 
Rousseau   annihilates  it.     He    absolutely  refuses  to 

1  That  is,  as  excluding  the  true  legislative  function.  _^ 


7 


/ 


80  THE  NATURE  OF  THE  STATE 

any  governmental  authority  the  power  of  expressing 
the  will  of  the  State.  Its  duties  are,  according  to 
him,  strictly  limited  to  executive  acts.  It  is  thus 
in  no  true  sense  an  organ  of  Sovereignty.  "  What, 
then,"  he  asks,  "is  the  Government?  An  interme- 
diate body  established  between  subjects  and  sovereign 
for  their  mutual  intercourse,  charged  with  the  execu- 
tion of  the  laws  and  the  maintenance  of  liberty  — 
civil  as  well  as  political."^  But  even  this  limited 
power  is  at  any  moment  subject  to  be  withdrawn. 
"  The  instant  that  the  people  is  legitimately  assem- 
bled in  a  sovereign  body,"  says  he,  "  all  jurisdiction 
of  Government  ceases."  ^ 

\  The  natural  freedom  of  man  is  presupposed,  and 
the  purpose  for  which  the  State  is  established  is 
"  to  find  a  form  of  association  which  shall  de- 
fend and  protect  with  the  public  force  the  person 
and  property  of  each  associate,  and  by  means  of 
which  each,  uniting  with  all,  shall  obey,  however, 
only  himself,  and  remain  as  free  as  before."  ^  This 
purpose  is  obtained  by  a  Social  Contract  entered  into 
between  individuals  of  a  community,  according  to 
which  each  person  "  gives  in  common  his  person  and 
all  his  power  under  the  supreme  direction  of  the 
General  Will,  and  receives  again  each  member  as 
indivisible  part  of  the  whole."  The  individual  in 
giving  himself  to  the  control  of  all  gives  himself  to 
no  particular  person.  Each  person  in  himself  pos- 
sesses an  indivisible  and  inalienable  portion  of   the 

1  The  Social  Contract,  Bk.  III.  Chap.  I. 

a  Idem,  Bk.  III.  Chap.  XIV.  «  Idem,  Bk.  I.  Chap.  VI. 


THE   ORIGIN  OF  THE   STATE  81 

Sovereignty  of  the  whole.  The  contractual  origin  of 
Government  is  expressly  disavowed.  The  original 
compact  is  between  individuals  and  creates  the  body 
politic,  of  which  Government  is  but  the  servant. 
'"  Those  who  contend,"  says  Rousseau,  "  that  the 
act  by  which  a  people  submit  to  chiefs  is  not  a 
contract,  are  quite  right.  It  is  absolutely  only 
a  commission,  in  which,  as  simple  officers  of  the 
sovereign,  they  exercise  in  his  name  the  power 
of  which  he  has  made  them  the  depositary,  and 
which  he  can  limit,  modify,  and  take  away  when 
he   wishes."  ^ 

The  legislative  or  volitional  power  must  always 
remain  with  the  people,  for  while  power  may  be 
delegated,  will  cannot.  The  people  are  thus  left  as 
free  as  before  the  contract,  and  owe  obedience  to  the 
acts  of  the  de  facto  Government  only  so  long  as  it 
pleases  them  to  do  so.  Only  that  is  law  and  has  a 
binding  force  which  accords  with  the  General  Will ; 
and  this  General  Will  can  only  be  expressed  directly 
by  an  assembly  in  which  every  citizen  has  a  personal 
vote.  Representative  Government  is  thus  condemned ; 
and,  according  to  him,  the  English,  though  believing 
themselves  free,  are  only  free  when  electing  a  new 
Parliament.  A  Parliament  once  elected,  they  become 
its  slaves.  The  true  political  sovereign  is  thus  the 
totality  of  the  citizens.  Its  powers  are  necessarily 
unlimited,  for  the  original  contract  which  is  the 
"  foundation  of  all  rights "  is  entered  into  by  and 
between   the   whole   people,  who   as   the   sovereign 

1  Idem,  Bk.  III.  Chap.  I. 


_§2  THE   NATURE   OF  THE   STATE 

cannot  enter  into  a  contract  with  itself.  Thus, 
"As  nature  gives  to  man  absolute  power  over  his 
members,  the  social  compact  gives  to  the  body  politic 
absolute  power  over  its  members ;  and  it  is  this  same 
power  which,  directed  by  the  General  Will,  bears,  as 
I  have  said,  the  name  of  Sovereignty."  -^ 

Such  political  absolutism  is  not,  however,  oppres- 
sive of  the  liberty  of  the  citizens  either  individually 
or  as  a  People.  Obviously  not  of  them  as  a  People, 
for  they  are  themselves  the  possessors  of  Sovereignty. 
Nor  individually,  because  "the  constant  will  of  all 
the  members  of  the  State  is  the  General  Will."  ^ 
This  General  Will,  however,  is  not  necessarily  the 
result  of  the  unanimous  will  of  the  citizens.  The 
only  agreement  needing  absolutely  unanimous  con- 
sent is  the  original  compact.  "  There  is  but  one 
law,"  says  Eousseau,  "  which,  from  its  nature,  re- 
quires unanimous  consent ;  it  is  the  social  compact ; 
for  civil  association  is  the  most  voluntary  act  in  the 
world ;  every  man  being  born  free  and  master  of 
himself,  no  one  can,  under  any  pretext  whatever, 
enslave  him  witliout  his  consent."  But  "  when 
the  State  is  established,  consent  is  in  residence ;  to 
dwell  in  a  territory  is  to  submit  to  its  Government."  ^ 
Within  the  State,  however,  a  majority  vote  is  suffi- 
cient to  control.  The  manner  in  which  Rousseau 
harmonizes  this  subjection  of  the  minority  to  the 
majority  with  his  declaration  that  all  men  should  be 
free,  is  as  follows :  — 

1  The  Social  Contract,  Bk.  IT.  Chap.  IV.  2  j^i^j^,  Bk.  IV.  Chap.  II. 

8  Idem,  Bk.  IV.  Chap.  H. 


THE   ORIGIN  OF  THE   STATE  83 

"When,"  says  he,  "a  law  is  proposed  in  an  as- 
sembly of  the  people,  what  is  asked  of  them  is  not 
exactly  whether  they  approve  of  the  proposition  or      ; 
whether  they  reject  it,  but  whether  or  not  it  con-      j 
forms  to  the  General  Will,  which  is  theirs ;  each  one      I 
in  giving  his  vote  gives  his  opinion  upon  it,  and  from       ! 
the  counting  of  the  votes  is  deduced  the  declaration 
of  the  General  Will.     When,  however,  the  opinion       | 
contrary  to  mine  prevails,  it  shows  only  that  I  was 
mistaken,  and  that  what  I  had  supposed  to  be  the 
General  Will   was   not   general.     If  my  individual 
opinion  had  prevailed,  I  should  have  done  something 
other  than  I  had  intended,  and  then  I  should  not  j 

have  been  free."  ^ 

Upon  this  point  it  will  be  seen  that  the  reasoning-'T^^ 
is  substantially  the  same  as  that  of  Hobbes ;  namely, 
that  the  consent  given  to  the  original  compact  makes 
all  acts  of  the  power  established  by  that  contract 
the  acts  of  the  contracting  party.  Thus  in  Book  I. 
Rousseau  says  :  "  In  fact  each  individual  can,  as  man, 
have  an  individual  will  contrary  to  or  different  from 
the  General  Will  which  he  has  as  a  citizen.  In 
order  then  that  the  social  compact  may  not  be  an 
idle  formula,  it  includes  tacitly  this  agreement,  which 
alone  can  give  force  to  the  others,  that  whoever  shall 
refuse  to  obey  the  General  Will  shall  be  compelled  to 
it  by  the  whole  body,  which  signifies  nothing  if  not 
that  he  will  be  forced  to  be  free." 

But  "  it  is  only  the  General  Will  which  is  obligatory 
upon  individuals,  and  it  is  never  certain  that  an  in- 

1  Idem,  Bk.  IV.  Chap.  III. 


84  THE  NATURE   OF  THE   STATE 

dividual  will  will  conform  to  the  General  Will  until 
after  it  has  been  submitted  to  the  free  suffrages  of 
the  people."  Thus,  as  he  says  in  a  previous  note, 
though  unanimity  be  not  necessary  in  the  formation 
of  a  General  Will,  it  is  necessary  that  all  votes  be 
counted. 


Comparison.  —  Having  stated  now  the  positions  of 
Hobbes,  Locke,  and  Rousseau,  each  of  whom,  starting 
with  an  original  compact  as  the  origin  of  political 
society,  deduces  such  different  results,  it  will  be  con- 
venient, by  way  of  summary,  to  compare  and  contrast 
^^their  views. 

J   I     llo^bes   and  Rousseau   agree  in   maintaining  the 

absolutism  of  Sovereignty.     But  the  latter  considers 

the  exercise  of  this  power  possible  only  by  the  whole 

community,  and   that   law  is  a  formulation  of   the 

V  General  Will  which  can  be  expressed  only  in  a  di- 

■  rect  manner  by  the  people  ;  for,  while  power  can  be 

#  transmitted,  will  cannot.  With  Hobbes,  however,  the 
sovereign  power  can  be  placed  in  the  hands  of  one, 
.jf'>  the  few,  or  all,  but  once  conferred,  such  sovereign 
power  cannot  be  recalled  by  the  people  into  their 
own  hands.  Rousseau  makes  a  distmction  between 
III  ^^  facto   Governments   and    Governments    de  jure ; 

7  r  while   with    Hobbes,   the    de  facto   Government   is 

always,  because  of  its  existence,  a  de  jure  Govern- 
ment as  well. 

Hobbes  thus  makes  no  distinction  between_Gov- 
ernment  and  State,  both  being  conceived  as  at- once 
created  by  the  original   conipact,  the  grouniL-being 


^  THE   ORIGIN  OF   THE   STATE  85 

/   taken  that  the  only  way  that  a  society  of  men  can 
I    become   politically   organized    is   by    handing   over 
f    entirely  and  'forever"  ^tlie"  sovereign  power  to  some 
sovereign  one,  few  or  all. 

ilolibes    differs   from    Locke    in    holding   that   a 
chanece  in  Government  necessitates  a  dissolution  of 
political  society  and  a  return  to  anarchy ;  the  latter 
holding   that   such    change    only    signifies    that  the 
people  exercise   their   sovereign   and   legal  right  of 
selecting  their  own  jDublic_ servants. 
___  Locke  and  Rousseau  agree  in  limiting  the  power  of 
Government.     Hence   they  agree  in  placing  in  the  /" 
hands  of  the  people  the  power  to  determine  in  whoso/W  . 
hands  political  rule   shall    be  placed  or  allowed  to]  ' 
remain.     With  Locke,  however,  a  legal   validity  is 
granted  to  all  acts  of  the  governing  power   except 
those  plainly  in  violation  of  the  rights  of  the  individ- 
ual, and  oppressive  to  such  an  extent  as  to  justify 
revolutionary   measures.      With    Rousseau,   on   the 
other  hand,  all  laws  require  the  direct  participation 
of  the  people  in  their  formulation   and   expression. 
Thus,  that  sovereign  power  which  Locke  considered 
as   held   in   reserve  by  the  people,  and   only  to  be 
exercised  in  extreme  cases,  Rousseau  held  to  be  in  u 
continual  and  constant  exercise  by  the  people.     Ac-^ 
cording  to   Rousseau,  by  the.  original  compact  the. 
people  themselves  in  their  collective  capacity  became    -^ 
the  sovereign  and  continued  so.     The  General  Will 
j     ailcf 'political  Sovereignty  are  thus  completely  iden- 
i     tified. 

Contract  Theory  in   Germany  and  America. — The 


86  THE   NATURE   OF  THE   STATE 

Contract  Theory  had  a  very  considerable  influence 
upon  German  publicists  during  the  period  immedi- 
ately following  Rousseau ;  but  the  development 
given  to  it  by  them  was  not  such  as  will  make  it 
necessary  for  us  to  spend  more  than  a  few  moments 
upon  their  views.  Kant  and  Fichte  both  accepted 
the  Contract  Theory  as  a  good  working  hypothesis, 
but  denied  its  historic  possibility.  Moreover,  Kant 
held  this  view  merely  as  one  that  furnishes  the  best 
rule  by  which  to  test  the  justice  of  laws,  not  as  one 
by  which  to  determine  their  legality.  That  is,  ac- 
cording to  him,  laws  should  be  such  as  a  people 
might  consent  to ;  and  if  not  such,  they  are  unjust. 
But  whatever  the  law  is,  it  is  the  duty  of  subjects 
to  obey. 

Fichte,  likewise,  accepted  the  Contract  Theory  as 
furnishing  the  best  theoretical  basis  upon  which  to 
found  rules  of  justice,  and,  in  his  earlier  writings, 
pushed  the  rights  of  the  individual,  in  some  direc- 
tions to  a  greater  extent  than  had  done  Rousseau, 
maintaining  the  right  of  the  individual  to  withdraw 
at  any  time  from  the  State  of  which  he  is  a 
citizen.  But  in  a  later  work  his  political  views  be- 
came more  absolute,  and  the  spliere  of  the  State 
which  he  had  at  first,  like  Kant,  limited  to  the 
negative  functions  of  preservation  of  life  and  prop- 
erty (BecJitsstaat),  became,  in  his  later  work  {Der 
Geschlossene  Ilandelsstaat)  almost  communistic. 
f'^'ln  addition  to  the  great  influence  vv'hich  the  theo- 
ries of  Locke  and  Rousseau  had  upon  English  and 
European  thought  and  politics,  a  most  profound  in- 


THE   ORIGIN   OF   THE   STATE  87 

fluence  was  exercised  upon  political  tliouglit  in 
America.  The  compact  theory  is  recognized  in  the 
preamble  of  the  Declaration  of  Independence,  and  is 
explicitly  accepted  in  nearly  all  of  the  Bills  of  Rights 
of  the  Constitutions  of  the  various  commonwealths 
of  our  Union.  Thus,  for  exauiple,  in  that  of  New 
Hampshire  it  is  declared  that  ''  all  men  are  born 
equally  free  and  independent.  Therefore  all  gov- 
ernment of  right  originates  from  the  people,  is 
founded  in  consent,  and  instituted  for  the  general 
good."  In  the  preamble  to  the  Constitution  of 
Massachusetts  it  is  said,  "  the  body  politic  is  formed 
by  a  voluntary  association  of  individuals.  It  is  a 
social  compact,  by  which  the  whole  people  cove- 
nants with  each  citizen,  and  each  citizen  with  the 
whole  people,  that  all  shall  be  governed  by  certain 
laws  for  the  general  good." 

Also  in  the  private  writings  of  Jefferson  and 
MadisdiTlthd  other  statesmen  of  tliat  period,  we 
find  the  social  contract  theory  accepted  in  its  purest 
form.  Jefferson  goes  to  the  extent  of  holding  that 
one  generation  cannot  bind  another,  and,  based  upon 
a  calculation  as  to  average  length  of  life,  says, 
"  every  constitution,  then,  and  every  law  naturally 
expires  at  the  end  of  thirty-four  years."  At  a  later 
date  he  reduces  this  period  to  nineteen  years,  thus 
making  the  natural  life  of  political  States,  as  some 
one  has  said,  shorter  than  that  of  a  horse.  Madi- 
son, to  whom  these  views  were  expressed,  while 
not  accepting  this  deduction,  yet,  in  his  answer 
to   Jelferson,    maintains    the    contractual   origin   of 


88  THE  NATURE  OF  THE  STATE 

/ 

/'  political  society,  and  asserts  that  the  continued 
validity  of  constitutions  and  laws  rests  upon  tacit 
acceptance  through  the  fact  of  their  not  being  ex- 
plicitly revoked.^ 

-^  1  See,  upon  this  point,  an  article  by  Professor  G.  P.  Fisher,  entitled 
"  Jefferson  and  the  Social  Compact  Theory,"  in  the  Annual  Report  of 
the  American  Historical  Association  for  1893  ;  and  Borgeaud,  Adoption 
and  Amendment  of  Constitutions  in  Europe  and  America,  Chaps.  II. 
and  in. 


CHAPTER  V 

CRITICISM  OF  THE  CONTRACT  THEORY:  NATURAL 

LAW 

In  examining  the  logical  grounds  upon  which  the 
various  theories  of  contract  rest,  it  is  observed  that 
the  necessary  postulate  to  them  all  is  an  original, 
pre-civic,  non-political  condition  of  mankind.  This 
condition  is  termed  the  "State  of  Nature,"  and  in  it 
there  are  conceived  to  be  no  rules  regulative  of  human 
conduct,  save  those  afforded  by  the  so-called  "  Laws 
of  Nature,"  or  "Natural  Laws."  The  results  flow- 
ing from  such  a  state  of  life  are  variously  described 
as  happy  or  the  reverse,  according  to  the  disposition 
of  the  writer.  According  to  Locke,  Nature  teaches 
men  "  that  being  all  equal  and  independent,  no  one 
ought  to  harm  another  in  his  life,  health,  liberty, 
or  possession."  The  natural  state  is  one  of  peace, 
the  only  inconvenience  being  that  every  man  is 
necessarily  at  once  his  own  judge  and  executive  ^^y. 
in  cases  where  his  natural  rights  appear  to  be  in/^ 
conflict  with  those  of  others.  Hence  the  necessity 
for  the  establishment  of  some  sort  of  authority  that 
shall  be  common  judge  and  executive  agent.  The 
conception  of  Rousseau  is  quite  similar  to  that  of 
Locke's,  though  he  sees  in  the  "  State  of  Nature  "  an 
ideal,  rather  than   a  primitive  historical,  condition. 

89 


90  THE  NATURE   OE  THE   STATE 

The  Monarchist   Hobbes,  however,  more   mtent  on 

proving   the  legitimacy  and    necessity   of   absolute 

political  authority  than  in  demonstrating  individual 

rights,  places  more  emphasis  upon  man's  indhddual- 

istic  impulses,  and  pictures  the  non-political  state  as 

one  of  anarchy.     The  interests  of  men,  says  he,  are 

so  mutually  antagonistic  as  to  give  rise  to  constant 

war  of  every  one  against  his  neighbour ;  for  the  right 

of    nature    is,    in   fact,    nothing    more    than    "the 

liberty  that   each  man  hath  to  use  his  own  power 

for    the    preservation    of   his    own    nature."      The 

unrestricted  application  of  this  principle  necessarily 

makes  man  the  wolf  of  man  (Jiomo  liomini  hqms). 

But  reason  soon  tells  man,  says  Hobbes,  that  the 

'   rule  of  self-preservation  thus  defeats  itself,  and  that 

the  end  will  be  better  attained  by  uniting  in  some 

\   sort  of  general  agreement  whereby,  through  a  union 

f   of   individual   powers,    a   supreme    power    may    be 

obtained,  which  w^ll  have  the  strength  to  compel  the 

obedience  of  individuals  to  its  orders,  and  thereby  to 

introduce  peace.    Thus  the  Social  Contract  is  entered 

1  into  for  the  better  preservation  of  life,  and  is  hence 

!  validated  by  natural  right,  which,  as  said,  commands 

j  each  man  to  use  his  power    "for   the  preservation 

of  his  own  nature." 

Now,  it  is  obvious  that  if  we  would  criticise  upon 
logical  grounds  the  views  of  these  contract  writers,  it 
is  necessary  that  we  should  first  of  all  examine  the 
character  and  validity  of  these  so-called  "  Natural 
Laws"  and  "Rights"  upon  which  they  so  confidently 
base  their  reasoaing.     In  doing  this  we  shall  like- 


CRITICISM  OF  THE   CONTRACT  THEORY  91 

wise  be  preparing  ourselves  for  a  consideration  of  the 
doctrines  of  constitutional  government  and  popular 
sovereignty  with  which  we  shall  be  later  concerned. 

Distinctions.  —  The  term  "  Laws  of  Nature  "  we  find 
used  in  various  senses,  and  our  first  task  will  be  to 
distinguish  between  those  that  have  figured  in,  and 
served  to  confuse,  political  speculations. 

I.  First  of  all,  "Natural  Law"  is  employed  to 
indica/te  .mere  sequences,  of  cause  and  effect  in  the 
phenomenal  world. 

It  is  only  in  a  borrowed  sense  that  the  term  "law" 
is  here  applicable.  There  is  here  no  element  of  a 
command  addressed  to  rational  beings,  and  in  fact 
no  possibility  of  an  infraction  of  the  principles 
stated.  Such  "laws"  are  only  statements  of  ob- 
served operations  in  the  world,  which,  in  accordance 
with  the  principle  of  nature's  uniformity,  may  be 
confidently  expected  to  re-occur  whenever  certain 
given  conditions  are   present. 

It  will  be  seen  that  in  conceiving  these  uniformi- 
ties of  nature  as  due  to  pre-ordained  "laws,"  nature 
is  viewed  as  an  active  legislative  principle  and  as 
itself,  by  its  own  will,  and  as  a  living  entity,  dic- 
tating the  manner  in  which  its  operations  shall 
proceed.  In  this  aspect  it  is  thus  distinguished  from 
nature  as  simply  a  sum  or  series  of  particular  phe- 
nomena. "  This  is  the  distinction,"  says  Ritchie, 
"  which  in  scholastic  phraseology  is  known  as 
that  between  (a)  Natura  naturans,  and  (b)  Natura 
naturata.  We  may  indeed  speak  of  nature  doing 
this  or  that,  personifying  and  unifying  the  forces  of 


92  THE  NATURE  OF  THE  STATE 

the  universe,  without  intending  to  commit  ourselves 
to  any  definite  theory  as  to  the  ultimate  explanation 
of  things ;  but  whenever  we  speak  of  nature  in  such 
a  way,  we  are  more  or  less  consciously  speaking  of 
natura  naturans,  of  nature  as  dynamic,  as  operating 
and  operating  for  definite  purposes,  however  much 
we  may  qualify  our  personification  by  warning  others 
and  ourselves  that  our  language  is  metaphorical. 
When  we  speak  of  nature  as  simply  a  collection  of 
objects,  in  whose  presence  we  find  ourselves  and 
which  form  the  materials  for  scientific  inquiry  as  to 
how  they  stand  related  to  one  another,  we  are  speak- 
ing of  7iatura  naturata" ^ 

,  II.    The  term  "  Laws  of  Nature  "  is  likewise  used 

to  indicate  the  instinctive  conduct  of  living^beings  — 
men  and  animals  alike. 

The  most  general  principle  under  this  head,  and 
the  one  upon  which  all  other  principles  are  based,  is 
that  of  the  "  natural "  or  instinctive  effort  of  all  liv- 
ing beings  to  preserve  their  own  existence,  and  to  sat- 
isfy the  desires  to  which  their  own  nature  gives  rise. 

\^  In  this  sense,  also,  the  "Laws  of  Nature"  are  not 

commands  to  do  or  refrain  from  doing  particular 
acts.  They  contain,  in  reality,  "nothing  but  a  state- 
ment of  that  which  a  given  being  tends  to  do  under 
the  circumstances  of  its  existence,  and  which,  in  the 
case  of  a  living  being,  it  is  necessitated  to  do  if  it  is 
to  escape  certain  kinds  of  disability,  pain,  and  ulti- 
mate dissolution."  ^ 

1  Natural  Rir/hts,  pp.  71,  72. 

^  Huxley,  "Natural  and  Political  Rights,"  Essays,  Vol.  I.  p.  349. 


CRITICISM  OF  THE   CONTRACT  THEORY  93 

MrJJuxley,  in  the  essay  from  which  the  preceding 
sentence  is  taken,  has  developed  with  his  character- 
istic lucidity  the  exact  nature  of  "Natural  Laws"  and 
"  Natural  Rights,"  in  the  sense  we  are  now  treating    . 
them,   and   the    consequences   that   flow   therefrom."  ' 
Thus,  it  is  the  natural  right  of  the  tiger,  as  based 
upon  the  characteristics  of  its  own  being,  to  seek  its 
prey,  and  this  without  distinction  as  to  whether  that 
prey  consists  of  animal  or  human  meat.  "  If,  there- 
fore, we  deny  that  tigers  have  the  right  to  torment 
and  devour  man,  we  really  impeach,  not  the  conduct 
of  tigers,  but  the  order  of  nature."     "  The  natural 
right  deduced  from  such  a  law  of  nature  is  simpl}^  a 
way  of  stating  the  fact ;  and  there  is  in  the  nature  of 
things,  no  reason  why  a  being  possessing  such  and 
such  tendencies  to  action  should  not  carry  them  into 
effect.  .  .  .    The  ceaseless  and  pitiless  ^  struggle  for 
existence '  which  obtains  throughout  the  whole  world 
of   living  beings  is,  in  truth,  the  inevitable  conse- 
quence of   the  circumstance  that  each  living  being 
strives    knowingly,   or   ignorantly,  to    exert   all    its 
powers  for  the  satisfaction  of  its  needs ;  and  asserts 
a  tacit  claim  to  possess  (to  the  exclusion  of  all  other 
beings)  all  the  space  on  the  earth's  surface  which  it 
can  occupy  and  to  appropriate  all  the  subsistence 
which  it  can  utilize.     The  state  of  sentient  nature, 
at  any  given  time,  is  the  resultant  of  the  momentarily 
balanced  oppositions   of   millions   upon   millions    of 
individuals,  each  doing  its  best  to  get  all  it  can  and 
to  keep  what  it  gets ;  each,  in  short,  zealously  obey- 
ing the  law  of  nature  and  fighting  tooth  and  nail  for 


94  THE  NATURE  OF  THE  STATE 

its  natural  rights.  This  is  the  ne  ^;/i^s  ultra  of 
individualism ;  and  whenever  individualism  has  un- 
checked sway,  a  polity  can  no  more  exist  than  it  can 
among  the  tigers  who  inhabit  the  jungle.  It  is,  in 
fact,  the  sum  of  all  possible  anti-social  and  anar- 
chistic  tendencies."  ^ 

Long  before,  however,  Mr.  Huxley  so  clearly 
developed  this  subject,  Spinoza  had  laid  bare  its 
essential  character,  and  followed  it  out  to  its  ex- 
treme and  logical  consequences :  "By  the  right 
and  ordinance  of  nature,"  says  he,  "  I  merely  mean 
those  natural  laws  wherewith  we  conceive  every 
individual  to  be  conditioned  by  nature,  so  as  to 
live  and  act  in  a  given  way.  For  instance,  fishes 
are  naturally  conditioned  for  swimming,  the  greater 
for  devouring  the  less,  therefore  fishes  enjoy  the 
water,  and  the  greater  devour  the  less  hy  sovereign 
natural  right.  For  it  is  certain  that  nature  taken  in 
the  abstract  has  sovereign  right  to  do  anything  she 
can;  in  other  ivords,  her  right  is  coextensive  ivith 
her  powers.''  ^  Furthermore,  he  says  :  "  We  do  not 
here  acknowledge  any  difference  between  mankind 
and  other  individual  natural  entities,  nor  between 
men  endowed  with  reason,  and  those  to  whom 
reason  is  unknown,  nor  between  fools,  madmen, 
and  sane  men.  Whatsoever  an  individual  does  by 
the  laws  of  its  nature  it  has  a  sovereign  right  to 
do,  inasmuch  as  it  acts  as  it  was  conditioned  by 
nature,  and   cannot   act   otherwise."  ^ 

1  Huxley,  "Natural  and  Political  Rights,"  Essaijs,  I.  pp.  349-351. 

2  Tractatus-theologko-politicus  (Bohn's  trans.),  Chap.  XVI.  p.  200. 
8  Idem,  p.  201. 


CRITICISM  OF  THE   CONTRACT  THEORY  95 

III.  The  third  meaning  ascribed  to  the  term 
"Laws  of  Nature,"  with  which  we  need  to  concern 
ourselves,  is  that  of  hypothetical  commands,  guiding 
human  conduct,  which  commands  are  supposed  to 
derive__their  _y.alidity  from  divine  intention,  or  from 
uiiiversal  nature  itself.  Hence,  as  independent  of 
human  enactment,  laws  thus  conceived  are  neces- 
sarily of  absolute  and  universal  validity,  binding 
at  all  times,  in  all  places,  and  over  all  peoples.  The 
belief  in  the  existence  of  these  laws  is  not  neces- 
sarily bound  up  in  the  acceptance  of  the  view  that 
there  once  existed  a  "State  of  Nature,"  in  which 
perfect  state  these  laws  supplied  the  entire  regu- 
lative force,  but  in  history  it  has  been  largely  identi- 
fied with  such  a  view.^ 

It  is  especially  in  this  third  sense  that  we  meet 
with  the  theory  of  Natural  Law  in  juridical  and 
political  speculation.  Before,  however,  proceeding 
to  a  critical  consideration  of  the  logical  principles 
involved  in  the  acceptance  of  these  metaphysical, 
divine,  or  natural  rules  of  human  conduct,  it  will 
pay  us  to  consider  shortly  the  history  of  the  manner 
in  which  this  element  has  entered  into  the  systems 
of  political  writers. 

History  of  the  Theory  of  the  Law  of  Nature.-  — 
As   already   known,    divine  law,   pure    and   simple, 

^  See  article  by  Professor  Taylor,  on  "  Law  of  Nature,"  in  the  .1  ntmls 
of  the  Am.  Acad.  Pol.  and  Soc.  ScL,  April,  1891. 

■■2  In  beginning  this  division  of  our  subject,  it  is  proper  that  spe- 
cial mention  should  be  made  of  the  extremely  able  and  lucid  treat- 
ment of  this  subject  by  Mr.  John  W.  Salraoud  (Law  Quarterly  Re- 


96  THE  NATURE  OF  THE  STATE 

swallowed  up,  in  the  beginning,  all  ideas  of  law. 
Though  necessarily  uttered  and  enforced  by  human 
agents,  a  supermundane  sanction  was  conceived  to 
attach  to  all  rules  to  which  the  obedience  of  the 
people  was  demanded.  This  was  the  condition  that 
existed  in  all  the  Oriental  countries,  and  during  the 
Heroic  period  of  Grecian  history. 
J  It  is  first  in  the  time  of  the  Sophists,  repre- 
senting, as  Janet  says,  the  period  of  enlightenment 
(aufkVdning)  of  Greece,  that  we  find  the  question 
raised  whether  there  be  fixed  canons  of  ridit  and 
wrong  that  are  settled  for  all  time  by  God,  or 
Nature,  or  only  provisions  changeable  at  the  caprice 
of  men.  The  Sophists,  however,  did  not  recognize 
the  distinction  between  the  idea  of  legal  right  and 
wrong,  and  the  forms  in  which  it  may  be  embodied  ; 
and  because  they  saw  those  forms  differing  among 
different  peoples  and  at  different  times,  they  re- 
jected the  whole  idea  of  right  and  the  good.  Thus 
"they  maintained  that  every  nation,  every  epoch, 
as  well  as  every  individual,  from  motives  of  caprice 
or  interest,  might  prescribe  to  itself  or  himself  what 
it  or  he  should  consider  lawful  or  unlawful,  and 
might  act  accordingly.  In  this  manner  subjec- 
tivity finally  passed  all  bounds."  ^ 

viero,  April,  1895,  article  "  Law  of  Nature  ")  as  well  as  of  the  recent 
work  of  Professor  Ritchie,  entitled  Natural  Rights.  From  these  two 
sources  has  been  derived  much  of  the  historical  matter  contained  in 
the  next  following  paragraphs.  Other  valuable  sources  are  Gierke, 
Johannes  Althusius  u.  die  Entwicklung  der  naturrechtlichen  Staats- 
theorien;  Lasson,  Rechtsphilosophie ;  and  of  course  Maine,  Ancient 
Law,  Chap.  III. 

*  Janet,  in  Lalor's  Ency.  Pol.  Sci.,  article  "  Philosophy  of  Law." 


CRITICISM  OF  THE  CONTRACT  THEORY  97 

At  the  hand  of  the  Cynics,  the  appeal  to  the  State 
of  Nature  took  the  fofm~oFa  protest  against  human 
conventionalities  and  so-called  artificialities  of  life, 
as  opposed  to  simple  primitive  conditions.  This 
principle  they  applied  not  only  in  their  philosophic 
thought,  but  in  their  practice  of  life.  In  the  con- 
duct of  Diogenes,  who  disowns  the  State,  becomes 
a  "  citizen  of  the  world,"  lives  in  a  tub,  and  discards 
all  superfluous  clothing,  we  see  the  practical  results 
obtained.  In  many  respects,  Rousseau's  conception 
of  "naturalness"  corresponds  to  this  Cynic  view,  and 
as  we  shall  also  see,  Mr.  Herbert  Spencer  does  not 
escape  from  the  same  error.^ 

Coming  now  to  Plato,  we  find  the  pre-existence  of 
eternal  ideas  again  upheld.  In  fact,  the  chief  object 
of  his  Republic  is  the  demonstration  of  a  natural 
justice  apart  from  human  origination,  and  of  which 
human  justice  is  but  an  imperfect  image.  The  idea, 
however,  of  a  natural  laio  declaring  and  rendering 
practically  valid  this  natural  justice,  is  not  made 
prominent.  In  the  writings  of  Aristotle  we  find  a 
correction  of  the  Cynic  view  that  had  characterized 
the  civilized,  conventional  life  of  man,  as  unnatural, 
and  as  morally  inferior  to  simpler  and  cruder  forms. 
A  natural  law  as  well  as  a  natural  justice  is  spoken 
of,  but  so  far  as  this  law  is  made  to  apply  to  human 
conduct,  it  is  practically  identified  with  divine, 
original,  unwritten  law. 

*  A  very  entertaining  revival  of  this  doctrine  is  likewise  to  be 
found  in  Mr.  Edward  Carpenter's  essay,  Civilization :  lis  Cause  and 
Cure. 


98  THE   NATURE   OF  THE   STATE 

In  the  systems  of  the  Stoics  we  at  last  find  a  well- 
delinecl  philosophical  meaning  given  to  the  term 
"Nature,"  according  to  which  it  appears  as  the 
"  manifestation  of  the  single  and  homogeneous 
spirit  of  the  world,  whose  several  phenomena  are 
connected  together  through  the  common  law  of 
right  reason.  The  Law  of  Nature  is  therefore  that 
common,  universal,  divine,  and  good  rule  of  reason 
which  governs  creatures  combined  in  a  natural  asso- 
ciation, regarding  it  as  a  reflection  of  the  process 
of  nature,  in  instinct  as  well  as  in  the  human  under- 
standing :  it  is  the  harmony  of  human  justice  with 
the  law  of  the  world,  which  results  from  the  iden- 
tity of  moral  and  of  material  nature,  independently 
of  any  positive  institution,"  ^ 

By  this  postulation  of  human  reason  as  the  re- 
vealer  of  the  laws  of  nature,,  and  as,  thus  the  judge 
of  right  conduct,  the.  Stoics  avoided  the  absurdities 
of  the  Cynic  maxims  and  made  their  application 
to  ordinary  life  conformable  to  the  practical  and 
reasonable  conditions  by  which  man  is  surrounded. 
Thus  "Nature  to  the  Stoics  is  not  the  mere  chaos 
of  sensible  things  minus  whatever  results, frOJU-inan's 
rational  efforts.  It  is  objective  reasoji,;  it__J^^__as 
with  Aristotle,  the  divine  element  in  the  Universe, 
the  reason  of  the  individual  man  is  only  a  partial 
manifestation  of  it;  his  reason  is  a  divine -element 
in  him,  and  it  is  in  virtue  of  this  divine  element  in 
him  that  man  can  understaiid  the  reason  that  is 
in  the  Universe  and  can  live  the  life  according  to 

^  Pulszky,  Theory  of  Law  and  Civil  Suciety,  p.  79. 


CRITICISM  OF  THE   CONTRACT  THEORY  99 

i^ature.  Thus,  reason  is  not  something  that  sepa- 
rates the  judgment  of  one  man  from  that  of 
another.  The  appeal  to  reason  is  an  appeal  to 
the  common  reason  of  mankind.  Human  laws 
and  institutions,  therefore,  are  no  longer  despised 
as  merely  conventional.  They  are  a  realization, 
however  imperfect,  of  the  Law  of  Nature  which  is 
behind  and  above  them."  ^ 

It  was  in  the  Stoic  form  that  the  idea  of  '^  Law 
of  Nature"  was  introduced  into  Roman  Law.  It 
will  not  be  necessary  to  trace  the  manner  in 
which  Rome  was  obliged  to  recognize  laws  not 
emanating  primarily  from  her  own  will  in  the  ad- 
ministration of  justice  between  members  of  her  Latin, 
provinces  who  were  not  entitled  to  the  benefit  of 
his  own  peculiar  jics  civile;  how  from  those  laws, 
found  to  be  common  to  all  the  Latin  tribes,  a 
body  of  jus  gentium  was  formed  ;  how,  subsequently, 
under  the  Stoic  influence,  the  Roman  jurists  began 
gradually  to  see  in  these  laws,  so  uniformly  accepted 
by  independent  tribes,  the  lost  "  code  of  nature " ; 
nor,  finally,  how  this  conception  once  accepted, 
the  Roman  Law  avoided  all  danger  of  arrest  of 
development  by  her  code,  and  became  furnished 
with  an  ideal,  in  the  effort  for  the  attainment  of 
w^iich,  unlimited  possibilities  of  development  were 
contained.^ 

1  Ilitchie,  Natural  Rights^,  p.  34. 

2  See  the  account  of  ]\Iaine  in  his  Ancient  Law,  Chaps.  Til.  and  lY. 
Maine  also  calls  especial  attention  to  the  service  of  the  jus  naturale 
in  France  as  supplying  general  principles  through  which  the  diverse 
elements  of  her  law  were  partially  harmonized  and  unified. 


100  THE   NATURE   OF  THE   STATE 

With  the  spread  of  Christianity  it  was  but  natural 
that  the  views  of  law  and  civil  society  should  be 
somewhat  changed. 

Tlie  influence  of  the  jus  naturale  upon  the  jus 
civile  of  Rome,  it  is  to  be  noticed,  was  not  so 
much  in  the  supplying  of  specific  principles  of 
adjudication,  as  in  the  harmonizing,  simplifymg, 
and,  above  all,  the  equalizing  influence  that  it 
exerted.  The  Romans  did  not  distinctly  aflirm 
the  historical  reality  of  a  ''State  of  Nature"  in 
which  Natural  Law  held  full  sway.  For  them,  jz^s 
naturale  was  founded  on  empiri(vlaw  [jus  gentium), 
and  as  such  was  not  actually  superior  to  their  own 
jus  civile.  That  is,  the  Natural  Law  was  not  held 
by  them,  as  at  any  time  actually  valid  until  ac- 
cepted and  adopted  by  Rome  as  her  own,  whereby, 
in  fact,  it  thus  became  a  part  of  the^ws  civile  proper. 
In  other  words,  this  hypothetical  Natural  Law  was 
received  as  an  ideal  towards  which  the  civil  law 
should  tend ;  not  as  a  code  which  had  actual,  pres- 
ent inherent  validity.  Its  actual  applicability  de- 
pended upon  the  peculiar  conditions  of  a  civil 
society,  and,  until  these  were  favorable,  the  civil 
law  prevailed. 
V  But  with  the  Christian  conception  of  the  world, 

1  the  State  of  Nature  was  received  as  the  original  state 
,  /-of  sinlessness  and  grace,  from  which  man  had  fallen 
•  \,  by  Adam's  sin.  It  was  thus  only  the  corruptness 
\  /  of  this  world  that  made  the  political  power  and  the 
(civil  law  a  necessary  evil.  This  is  especially  the 
conception  developed  by  St.  Augustine  in  his  Civitas 


CRITICISM  OF  THE   CONTRACT  THEORY  101 

Dei.  Natural  law  now  becomes  divine  law  (lex 
oeterna)  and  is  held  by  the  Church  to  be  actually 
applicable,  so  that  disobedience  to  it  on  the  part  of 
the  temporal  powers  may  be  punished  by  deposition, 
or  justify  regicide. 

As  might  be  expected,  the  doctrine  of  Natural  Law 
did  not  escape  further  analysis  in  the  keen  dialectics 
of  the  Schoolmen.  In  their  hands,  the  Natural  Law 
in  general,  or  lex  ceterna,  becomes  distinguished  from 
that  particular  part  of  it  which  applies  to  man  alone 
(lex  naturalis).  According  to  this,  the  lex  CBterna 
has  its  source  in  divine  reason,  and  the  lex  naturalis 
immediately  in  man's  reason.  Thus  the  lex  naturalis 
governs  man's  actions  only.  Though  revealed  by 
his  reason,  it  is  not,  however,  commanded  by  such 
reason,  but  by  the  divine  reason,  of  which  man's 
reason  is  only  a  partial  manifestation.  Thus  the 
lex  CBterna  says  to  beasts  and  all  non-reasoning  be- 
ings, you  must ;  while  to  man,  because  of  his  reason- 
ing faculties  and  his  moral  nature,  you  ouglit.  It 
is  of  course  apparent  that  this  distinction  is  very 
nearly  identical  with  that  between  the  second  and 
third  conceptions  that  we  have  stated  at  the  begin- 
ning of  this  chapter. 

The  reign  of  Scholasticism  may  be  roughly  said  to 
have  lasted  from  the  eleventh  to  the  sixteenth  cen- 
tury, its  greatest  influence  being  in  the  thirteenth 
century.  During  these  years  the  distinctions  that 
we  have  given  dominated  European  thought. 

With  Grotius  and  Hobbes,  however,  began  a  new 
period,  characterized  by  the  severance  of  natural  and 


102  THE  NATURE   OF   THE   STATE 

divine  laws;  that  is,  a  return  to  the  principlQ  pf 
nature  as  natura  naturans,  as  itself  legislative,  as  it 
were,  and  providing  rules  for  human  conduct  binding 
upon  man  by  his  very  own  nature.  As  such,  the  obli- 
gatory character  of  these  rules  was  made  independ- 
ent of  a  belief  or  disbelief  in  a  deity  to  which  this 
nature  might  be  ultimatel}''  referable.  The  reasona- 
bleness of  these  laws,  as  founded  upon  considera- 
tions of  utility,  rather  than  their  ascription  to  a 
divine  source,  served  to  give  validity  to  them.  In 
practical  politics,  the  writings  of  the  Florentine, 
Machiavelli,  had,  before  this,  served  to  free  the  tem- 
poral princes  from  the  obligatory  force  of  divine 
law  even  upon  the  conscience,  and  the  bald  utili- 
tarian principle  of  salus  ijopuli,  boldly  maintained 
as  justifying  every  act  of  whatever  character. 

We  have  already  traced  the  history  of  the  Con- 
tract Theory,  and  in  connection  therewith  seen  the 
part  played  by  Natural  Law  as  affording  a  basis 
thereto.  When,  however,  we  come  to  consider  the 
history  of  the  theories  of  Constitutional  Government 
and  Popular  Sovereignty,  we  shall  find  that  long 
after  the  Contract  Theory  had  been  generally  discred- 
ited and  discarded,  the  theory  of  Natural  Law  main- 
tained its  influence  in  the  form  of  so-called  "natural," 
"inalienable,"  "imprescriptible"  rights  of  man.  In 
fact,  in  this  guise,  it  is  still  widely  held  at  the  present 
day. 

The  influence  of  the  doctrine  of  Natural  Law  upon 
the  development  of  hiternational  Law,  through  the 
work  of  Grotius  and  his  school,  was  immediate  and 


CRITICISM   OF   THE    CONTRACT   THEORY  103 

all-important.  By  a  mistranslation,  the  jus  gentium 
of  the  Romans  was  made  to  mean  the  law  hetiveen 
nations.  By  thus  ascribing  to  it  a  source  in  Nature 
itself,  a  fictitious  validity  was  given  to  it,  which  went 
far  towards  securingr  its  recomition  at  the  hands 
of  sovereign  rulers.  States  were  viewed  as  inde- 
pendent individuals,  as  without  a  common  superior 
for  the  enunciation  of  mutually  binding  rules  of 
intercourse,  and  hence,  as  in  a  "  State  of  Nature  " 
towards  each  other  —  a  State  of  Nature  gov- 
erned, however,  as  said,  by  Natural  Law.  Thus 
Vattell  distinguishes  between  ''  the  necessary  law  of 
nations,  which  consists  in  the  application  of  the  law 
of  nature  to  nations "  (being  necessary  "  because 
nations  are  absolutely  bound  to  observe  it  ") ;  and  the 
positive  or  arhitrary  law  of  nations,  which  he  again 
divides  into  Voluntary,  Conventional,  and  Custom- 
ary} What  Vattell  calls  the  "  necessary "  law  of 
nations,  Grotius  terms  the  "internal  law  of  nations" 
because  obligatory  in  point  of  conscience.  He  also 
terms  it  the  "  natural  law  of  nations." 

Criticism  of  the  Theory  of  Natural  Law.  —  In 
the  first  place,  the  idea  of  the  civilized  life  of 
man  being  in  any  sense  non-natural  or  unnatural, 
—  a  position  taken,  as  we  have  seen,  by  the  Cynics, 
substantially  by  Rousseau,  and  revived  by  Spencer 
and  Carpenter, — is  false.  Man  is  himself  a  part  of 
Nature,  and  his  actions,  whatever  they  may  be,  are 

^  The  title  of  Vattell's  ■^ork  is  The  Law  of  Nations,  or  Principles 
of  the  Law  of  Nature  Applied  to  the  Conduct  and  Affairs  of  Nations  and 
Subjects.  The  quotations  are  taken  from  the  Preface,  p.  Ivii,  of  the 
4th  Am.  ed.  1835. 


104  THE   NATURE   OF   THE    STATE 

necessarily  "  natural."  In  fact,  to  state  that  a  thing 
is,  is  equivalent  to  stating  that  it  is  natural,  for 
everything  that  exists  is  a  part  of  natura  naturata, 
and  everything  that  happens  is  a  part  of  the  decree 
of  nature  as  natura  naturans.  When  we  come  to 
consider  the  "  Aims  of  the  State,"  we  shall  see  what 
bearing  this  alleged  distinction  between  the  "nat- 
ural" and  "unnatural,"  or  conventional  life  of  man, 
has  upon  that  problem. 

Secondly,  the  idea  of  Natural  Law  as  supplying 
definite,  absolute  rules  of  conduct  is  impossible. 
Though  conceived  as  absolute,  its  rules  are  neces- 
sarily relative,  that  is,  dependent  upon  the  particu- 
lar interpretation  of  Nature's  will  obtained  through 
man's  reason.  What  this  interpretation  will  be, 
obviously  depends  upon  the  given  data  from  which 
men  reason ;  and  these,  in  turn,  are  only  supplied  by 
objective  conditions  of  social,  economic,  and  political 
life.  Hence  Natural  Law,  so  far  as  it  is  viewed  as 
lex  naturalis  rather  than  lex  ceterna  generally  (which 
is  the  only  sense  in  which  it  is  pertinent  to  our 
inquiry),  is  by  necessity  practically  identical  with  the 
"  law  of  reason,"  even  if  it  be  not  so  philosophically 
conceived.  Thus  in  fact,  with  Kant,  who,  as  we 
have  seen,  accepts  the  Contract  Theory  as  the  only 
foundation  upon  which  to  base  a  just  criterion  of 
law,  the  Law  of  Nature  becomes  practically  identical 
with  the  categorical  imperative  of  practical  reason. 
As  Mr.  Salmond  points  out,  there  is,  however,  this 
essential  difference  between  the  view  of  Kant  and 
the  position  of  Aquinas  and  the  Schoolmen  generally. 


CRITICISM   OF   THE   CONTRACT   THEORY  105 

Wlien  Aquinas  speaks  of  the  dictates  of  practical 
reason,  he  means  principally  the  reason  of  God,  not 
of  man ;  i.e.  he  holds  that  man's  reason  is  not  in 
itself  possessed  of  legislative,  commanding  authority. 
Kant,  however,  proclaims  the  autonomy  of  human 
reason  as  itself  possessing  a  law-giving  faculty,  and 
declares  its  commands  to  constitute  the  Moral  Law. 
"  This  law,"  says  he,  "  is  the  single  isolated  fact  of 
the  practical  reason,  announcing  itself  as  originally 
legislative.  Sic  volo,  sic  juheo.  Reason  is  sponta- 
neously practical  and  gives  that  universal  law  which 
is  called  Moral  Law."  We  thus  see  the  a  priori 
element  in  law  carried  to  its  extreme  extent.  The 
ascription  to  reason  of  the  capacity  for  something 
more  than  mere  generalization,  comparison,  and 
judging  of  the  data  furnished  it  from  outside,  and 
the  giving  to  it  of  the  capacity  to  evolve  not  only 
form  but  subject-matter,  necessarily  renders  the  law 
to  that  extent  independent  of  actual  experience 
and  historic  relativity.^ 

TJiirdly,  though  Natural  Laws  are  conceived  as 
commands  either  of  the  Deity  or  of  Nature  her-  i 
self  {natura  naturans),  there  exists  no  means  of 
actual  coercion  in  case  of  disobedience.  Hence  their 
actual  binding  force  can  only  be  upon  the  con- 
science. That  is.  Natural  Laws,  from  their  inher- 
ent nature,  must  necessarily  be  moral  laws,  and 
moral  laws  only.  They  may  serve  to  represent 
what  slioidd  he,  but  not  what  is.  When  they  obtain 
actual  acceptance  and  enforcement  at  the  hands  of 

1  Of.  Pulszky,  Theory  of  Law  and  Civil  Society,  pp.  75  et  seq. 


106  THE   NATURE   OF  THE   STATE 

a  political  power,  they  become  ipso  facto  civil  or 
positive  laws.     But  of  this  more  anon. 

It  is  its  character  as  ideal,  rather  than  actual, 
that  has  caused  Natural  Law  to  be  appealed  to  by 
those  desiring  a  change  from  what  is,  and  it  has  thus 
made  it  ever  the  instrument  of  reform.  It  is  its  char- 
acter as  being  revealed  only  in  the  reason,  and  not 
in  the  explicit  command  of  a  human  authority,  that 
has  given  to  it  its  influence  against  all  customs  and 
institutions  that  have  lost  their  sacredness  or  out- 
lived their  usefulness.  Thus,  as  Ritchie  well  points 
out,  the  appeal  to  Natural  Law  is  an  appeal  from 
established  authority  and  judgment  to  the  individ- 
ual conscience  as  such,  —  the  demand  for  a  justifi- 
cation that  is  based  upon  grounds,  utilitarian  and 
moral,  that  will  satisfy  the  practical  reason  of  the 
individual  making  the  demand.^ 

Fourthly  :  Having  now  reduced  so-called  Natural 
Law  to  its  proper  ideal,  relative,  moral  character, 
we  have  finally  to  show,  that,  even  in  this  sense, 
the  term  is  not  applicable  to  any  form  of  regulation 
that  can  conceivably  exist  in  such  a  completely 
non-political  "State  of  Nature"  as  is  necessarily 
postulated  by  Contract  writers  as  the  condition 
from  which  the  establishment  of  political  life  re- 
lieved mankind.  That  is  to  say,  we  have  to  demon- 
strate that,  when  in  a  "  State  of  Nature "  men 
are  said  to  be  ruled  by  "  Laws  of  Nature,"  these 
laws  cannot  be  held  to  be  even  of  a  moral  validity. 
That,  therefore,  when,  as  Hobbes  says,  the  original 

^  Cf.  Ritchie,  Natural  Rights,  pp.  6  et  seq. 


CRITICISM   OF  THE   CONTRACT  THEORY  107 

contract  is  held  to  rest  upon  that  Law  of  Nature, 
"that  men  perform  their  covenants  made,"  ^  an  as- 
sumption is  made  that  cannot  be  logically  justified. 

That  this  is  so,  we  may  see  by  picturing  again  to 
ourselves  just  what  would  be  the  condition  of  man- 
kind in  a  completely  non-political  State.  In  such  a 
"'  State  of  Nature,"  there  is,  if  not  ex  Jujjjothesi,  logi- 
cally, at  least,  an  utter  and  entire  absence  of  human 
association  and  concert  of  action,  the  only  rules  for 
the  regulation  of  conduct  that  can  possibly  obtain 
being  Natural  Laws  as  used  in  the  second  sense  which 
we  have  given  them  above :  —  namely,  that  which 
identifies  them  with  the  natural  instincts  of  all  living 
beings,  men  and  brutes  alike,  to  maintain  their  own 
existences,  and  to  satisfy  the  desires  that  their  own 
natures  give  rise  to.  Under  such  a  regime,  passion 
and  momentary  inclination  necessarily  have  full 
sway,  and,  as  we  have  seen,  an  unmitigated  and 
pitiless  struggle  for  existence  must  prevail. 

It  need  not  be  said,  then,  that  under  such  condi- 
tions there  could  not  arise  in  the  minds  of  individ- 
uals any  recognition  of  "rights"  on  the  part  of  other 
individuals  which  should  be  respected  by  them  inde- 
pendently of  their  power  to  maintain  them.  Thus 
defining  "  right  "  as  a  man's  capacity  of  influencing 
the  acts  of  another  by  means  other  than  his  own 
strength,  we  may  agree  with  Green  that  "natural 
right  as  right  in  a  State  of  Nature  which  is  not  a 
state  of  society,  is  a  contradiction.  There  can  be  no 
right  without  a  consciousness  of  common  interest  on 

'  Leviathan,  Chap.  XV. 


108  THE   NATURE   OF   THE   STATE 

the  part  of  members  of  a  society.  Without  this 
there  might  be  certain  powers  on  the  part  of  individ- 
uals, but  no  recognition  of  these  powers  by  others 
as  powers  of  which  they  should  allow  the  exercise, 
nor  any  claim  to  such  recognition ;  and  without  this 
recognition  or  claim  to  recognition  there  can  be  no 
right."  ^  Thus  Green  criticises  Spinoza,  who  fully 
accepts  the  above  view,  for  retaining,  nevertheless,  the 
term  ^^jus  naturale.''  "As  it  is,"  says  Green,  "the 
term  'jus  naturale'  is  with  him  really  unmeaning. 
If  it  means  no  more  than  j^otentia,  why  call  it  jus  ^ 
Jus  might  have  a  meaning  distinct  from  that  of 
potentia  in  the  sense  of  a  power  which  a  certain 
imjjerium  enables  one  man  to  exercise  as  against 
another.  This  is  what  Spinoza  understands  by  jus 
civile.  But  there  is  no  need  to  qualify  it  as  civile, 
unless  jus  may  be  employed  with  some  other  quali- 
fication and  with  a  distinctive  meaning.  But  the 
jus  naturale,  as  he  understands  it,  has  no  meaning 
other  than  that  of  potentia,  and  his  theory  as  it 
stands  would  have  been  clearly  expressed  if,  instead 
of  jus  naturale  and  jus  civile,  he  had  spoken  of  poten- 
tia and  jus,  explaining  that  the  latter  was  a  power 
on  the  part  of  one  man  against  others,  maintained 
by  means  of  an  imperium  which  itself  results  from  a 
combination  of  powers."  ^ 

^  "  Lectures  on  the  Principles  of  Political  Obligation,"  Phil.  Works, 
Vol.  II.  p.  354. 

2  Op.  cit.  II.  p.  .301.  Thus  the  definition  of  a  "legal  right"  is  "a 
capacity  residing  in  one  man  of  controlling  with  the  assent  and 
assistance  of  the  State  the  actions  of  others "  (Holland,  Elements 
of  Jurisprudence,  Gtli  ed.,  p.  72). 


CRITICISM   OF   THE   CONTRACT   THEORY  109 

In  the  absence,  then,  of  "rights,"  as  distinct  from 
"powers,"  the  term  "morality"  can  have  no  appli- 
cation to  a  State  of  Nature  as  above  considered.  For 
morality,  in  at  least  its  social  aspect,  has  no  other 
basis  than  the  recognition  and  respect  of  others' 
,  rights.  The  same  is  true  of  the  term  "  justice,"  by 
'  which  is  meant  the  giving  to  each  one  his  proper 
"rights."  Hence  follows  the  truth  of  the  thesis 
stated  above,  that  in  such  a  non-civic  state  there  could 
not  arise  even  the  sense  of  a  moral  obligation  to 
observe  covenants  entered  into. 

Thus  the  entire  difficulty  in  answering  the  ques- 
tion with  which  we  have  been  so  long  dealing,  is  the 
false  manner  in  which  the  problem  has  been  stated. 
"  Given,"  it  has  been  said,  "  individuals  endowed  by 
nature  with  a  right  to  freedom  of  action,  how  can 
the  compulsion  that  the  State  exercises  be  justified?" 
But,  as  we  have  seen,  the  individual  is  not  endowed 
with  a  natural  right  to  freedom.  Nature  gives  to 
him  only  powers,  and  in  any  non-political  state, 
the  amount  of  compulsion  that  he  would  suffer 
at  the  hands  of  others  would  far  exceed  that  exer- 
cised by  any  government.  By  the  creation  of  a 
political  authority,  there  is  merely  a  substitution  of 
a  general,  definite,  paramount  force,  for  an  uncertain, 
arbitrary,  individual  force.  With  the  social  life  of 
men,  antagonism  between  their  respective  interests 
and  spheres  of  activity  is  an  absolute  necessity. 
Complete  freedom  of  every  one  to  do  as  he  likes 
is,  therefore,  out  of  the  question.  The  only  question 
is,  whether  these  conflicts  shall  be  settled  by  the 


< 


110  THE   NATURE   OF   THE   STATE 

particular  strength  given  by  Nature  to  each  individ- 
ual, or  whether  the  compulsion  shall  be  supplied  by 
a  general  authority  created  by  a  union  of  strengths. 
Thus  the  only  rational  meaning  that  the  word  "free- 
dom "  has  in  reference  to  the  individual,  aj^art  from 
freedom  of  the  will,  or  of  conscience,  is  in  respect 
to  a  certain  sphere  of  activity  within  which  the  indi- 
vidual claims  the  "  right  "  to  act  as  he  pleases,  undis- 
turbed by  others.  As  already  said,  however,  neither 
the  recognition  nor  claim  to  recognition  of  such  a 
"  right "  can  exist  in  a  simple  State  of  Nature.  It  is, 
therefore,  only  in  a  civil  state  that  such  a  "right" 
can  be  secured.  In  fact,  the  mere  propounding  of 
the  question,  "  Why  should  I  be  forced  to  do  this  or 
that  ? "  implies  that  I  claim  a  certain  freedom  that 
should  be  respected  by  others  independently  of  my 
power  to  maintain  it. 

By  what  might  at  first  seem  a  paradox,  it  thus 
appears  that  freedom  exists  only  because  tbere^is 
restraint.  That  is,  civil  freedom  has  necessarily  a 
positive  and  a  negative  sense:  —  positive,  as  regards 
freedom  to  jDcrform  certain  acts  unhindered  by 
others ;  negative,  as  regards  the  necessity  laid  upon 
the  individual  to  refrain  from  interference  with  the 
like  freedom  of  others.  Freedom  and  restraint  are 
thus  but  obverse  sides  of  the  same  shield.  The  fal- 
lacy of  that  school  of  anarchists  who  seek  to  abolish 
coercion  by  the  substitution  of  so-called  voluntary 
co-operation  for  political  authority,  we  shall  examine 
in  another  place.' 

^  Vide  post,  Chap.  XII. 


CRITICISM  OF  THE   CONTRACT  THEORY  HI 

In  conclusion,  then,  of  this  entire  subject,  we  find 
that  the  demand  for  a  moral  justification  of  the  State 
is  an  unnecessary  one.  If  the  political  government 
does  not  render  the  individual  any  less  free  than  he 
would  be  without  it,  its  authority  does  not  require  a 
moral  justification.  There  is  no  presumption  of  un- 
warranted interference  to  be  rebutted.  ( In  fact,  the 
real  reason  why  the  demand  for  a  moral  basis  for 
the  State  has  been  so  persistently  urged,  is  because  )s. 
of  the  confusion  that  has  existed  between  State  and 
Government,  —  between  the  political  power  itself, 
and  the  particular  agents  in  whose  hands  its  ex- 
ercise happens  to  be  vested.  ]  So  long  as  this  con- . 
fusion  existed,  it  was  but  natural  that  people,  in  j 
demanding  a  quo  loarranto  for  irresponsible  mon-  ; 
archs,  should  have  largely  identified  this  with  the 
demand  for  the  right  of  the  State  itself  to  be. 
( The  positive  basis,  then,  upon  which  the  State  ^ 
rests,  is  its  utility.'  It  will  be  remembered  that  we 
have  before  this  apparently  repudiated  the  utilita- 
rian doctrine,  but  this  was  only  when  it  was  urged 
as  a  justification  for  coercion  over  individuals  en- 
dowed with  a  natural  right  to  freedom ;  that  is, 
where  the  presumption  was  against  the  right  of 
political  authority.  We  there  held  that  if  the  in- 
dividual did  have  a  natural  or  moral  "  right "  to 
freedom,  no  doctrine  of  utility  could  justify  the  im- 
position of  the  coercive  power  of  the  State  upon  an 
individual  who,  so  far  as  he  himself  was  concerned, 
denied  its  usefulness.  But,  as  it  is  needless  to 
again  repeat,  m  the  new  and  correct  light  in  which 


112  THE   NATURE   OF  THE   STATE 

we  are  to  view  the  cliaracter  of   political  control, 
such  reasoning  does  not  apply. 

The  State  is  thus  justified  by  its  manifest  potency 
as  an  agent  for  the  progress  of  mankind.  The  only 
way  in  which  the  moral  element  enters,  is  as  to  the 
manner  in,  and  extent  to,  which  the  power  of  the 
State  shall  be  exercised.  The  "code  of  morality" 
of  a  given  community,  as  including  those  rules  of 
human  conduct  that  satisfy  the  general  sense  of 
moral  right  and  justice  of  that  community,  whether 
founded  on  eternal  immutable  principles  of  right 
and  wrong,  upon  the  dictates  of  man's  conscience 
as  completely  autonomous,  upon  reason,  or  upon 
utility  as  revealed  by  inherited  experience,  is  nec- 
essarily relative  to  the  state  of  enlightenment, 
character  of  religion,  economic  conditions,  and  civ- 
ilization in  general  of  the  particular  people  by 
whom  its  provisions  are  recognized.  [Taking  any 
code  of  morality  at  any  one  time,  the  laws  of  a 
State  are,  in  this  light,  morally  justified  just  to  the 
extent  to  which  they  coincide  with  its  provisions. 
But  even  in  this  respect,  it  is  to  be  noticed  that  in 
approximating  law  to  ethical  commands,  reference 
must  be  had  not  only  to  the  abstract  ethical  end 
to  be  obtained,  but  to  the  practical  possibility  of 
attaining  that  end  by  the  physical  compulsion  sup- 
plied by  the  law,  and  the  very  rough  means  at  its 
disposal  for  evaluating  moral  merit  or  guilt.  Also, 
the  still  further  question  is  to  be  considered,  whether 
or  not  the  substitution  of  legal  compulsion  for  volun- 
tary action,  while  possibly  securing  more  general  con- 


CRITICISM   OF   THE   CONTRACT  THEORY  113 

formity  to  the  principle  indicated,  may  not  lessen 
man's  feeling  of  moral  obligation  in  the  premises. 
For  where  men  obey  from  necessity,  the  ethical  duty 
is  easily  forgotten. 

Thus  we  find  lying  outside  of  the  law's  proper 
province  two  classes  of  actions.  First,  those  that 
do  not  admit  of  legal  enforcement,  i.e.  of  exter- 
nal compulsion ;  and,  secondly,  those  that,  while  pos- 
sible of  legal  enforcement,  are  better  left  to  the 
individual  conscience  because  of  the  reasons  above 
indicated.^ 

1  There  is  no  one  thing  that  renders  the  study  of  Continental 
jurisprudence  so  difficult  to  the  English  and  American  student  as  the 
extent  to  which  moral  and  legal  principles  are  there  confused.  It 
will  be  certainly,  therefore,  not  out  of  place  to  call  attention  here  to 
the  manner  in  which  this  confusion  is  created  by  and  reflected  in 
the  terminology  employed.  This  point  is  clearly  elucidated  in  the 
article  of  Mr.  Salmond,  to  which  I  have  already  referred,  and  from 
that  source  the  substance  of  this  note  is  taken.  Upon  the  Continent, 
ethics  is  divided  into  two  parts,  the  one  dealing  with  actions  which 
may  or  can  be  enforced  by  external  compulsion,  forming  the  subject- 
matter  of  Jurisprudence  or  Rechtsle.hre,  or  the  science  of  Droit  or 
Recht;  the  other  dealing  with  those  actions  that  cannot  be  so  com- 
pelled, but  must  be  left  to  the  individual  conscience,  forming  the 
subject-matter  of  Morale  or  Tugendlehre  or  Ethik  in  a  narrower 
sense,  or  the  science  of  Moralite  ov  Tugend.  It  will  be  thus  seen  that 
in  France  and  Germany  Droit  and  Recht  have  both  an  ethical  and 
legal  application.  That  is,  Droit  and  Recht  are  applied  not  only  to 
actions  that  actually  are  enforced  by  the  State,  and  which  the 
English  and  American  jurist  designates  as  positive  law,  or  law 
proper,  but  to  all  actions  capable  of  such  enforcement  whether  or  not 
they  are  as  a  fact  so  enforced.  In  like  manner  Morale  and  Tugend- 
lehre are  not  made  applicable  to  all  portions  of  right  conduct,  but 
simply  and  solely  to  those  actions  that  do  not  admit  of  external 
compulsion.  This  distinction  between  the  English  and  Continental 
nomenclatures  may  be  diagrammatically  represented  as  follows  : — - 

Let  the  quadrangle  ^4 SZ)C' represent  the  entire  field  of  conduct; 
GBDH  that  portion  not  enforceable  by  law ;  A  GHC  that  portion 
capable  of  legal  enforcement;  and  FEHC  that  portion  actually  so 
I 


114  THE   NATURE   OF   THE    STATE 

As  for  the  propriety  of  tlie  expression  "  Natural 
Law,"  which  figures  in  the  title  of  this  chapter,  it 
would  appear  that,  excluded  from  applicability  in  a 
"  State  of  Nature,"  except  as  meaning  mere  animal 
instinct,  the  only  sense  in  which  its  use  can  possibly 
be  justified,  is  as  indicating  a  moral  ideal  towards 
which  the  civil  law  should  tend.  But  thus  driven 
from  one  position  after  another,  even  here  in  its  last 
stand,  the  relativity  of  its  provisions  would  seem  to 
destroy  any  definiteness  or  claim  to  absolute  moral 
authority.  The  trail  of  its  a  2oriori  character  is  over 
it  all.  Professor  Taylor,  who  is  the  most  recent 
champion  of  Natural  Law,  attempts  to  explain  its 
relativity  as  apparent  rather  than  real  by  the  logom- 

enforced.      AGEF  will  then,  of   course,  represent  that  portion   of 
human  conduct  capable  of  legal  enforcement,  but  not  as  a  matter  of 

fact  so  enforced.  Then,  according 
to  Continental  usage,  GBDH  would 
constitute  the  field  of  Moralite  or 
Ttigend,  or  the  science  of  Morale 
or  Tucjendlehre ;  AGHC  would  be 
the  field  of  Droit  or  Recht  (Juris- 
prudence or  Recht slelire),  thus  in- 
cluding AGEF  as  well  as  FEHC. 
~^  />      According  to  English  usage,  on  the 

other  hand,  the  whole  field  ABDC 
constitutes  the  field  of  "Rights"  in  its  unqualified  or  moral  sense, 
and  the  science  of  ethics  is  correspondingly  inclusive.  But  be- 
tween that  portion  of  human  conduct  possible  of  legal  control,  and 
as  thus  potentially  law,  and  that  part  of  such  portion  of  human 
conduct  as  actually  is  thus  enforced,  a  distinct  line  is  drawn,  and  the 
terms  "law,"  "  legal  rights,"  and  "  jurisprudence  "  definitely  limited  to 
this  field.  Thus  is  obtained  a  preciseness  of  connotation  to  the  terms 
"law"  and  "morals,"  "legal  right"  and  "moral  right,"  that  Continen- 
tal publicists  have  never  been  able  to  secure.  It  may  perhaps  be  just 
to  Mr.  Salmond  to  say  that  he  is  not  responsible  for  the  diagram- 
matic illustration  given  above. 


E 

CRITICISM   OF   THE   CONTRACT   THEORY  II5 

achy  that  "  if  the  nature  of  men  and  circumstances 
change,  we  are  wont  to  say  that  the  law  changes. 
But  to  speak  exactly,  we  should  say  that  a  different 
law  applies  ;  but  a  law  like  its  predecessor,  eternal  and 
unchangeable,  because  determined  by  the  new  nature 
of  men  and  circumstances."  ^  Without  stopping  to 
ask  what  he  means  by  the  "new  nature"  of  men 
and  circumstances,  it  thus  appears,  according  to 
Professor  Taylor,  that  there  is  an  eternal,  un- 
changeable law  of  nature  that  should  govern  men's 
conduct,  but  the  determination  as  to  which  of  its 
provisions  shall  apply  depends  upon  the  given  con- 
ditions. In  different  conditions,  different  laws 
apply.  Surely  this  is  reducing  the  eternal  immuta- 
ble character  of  the  alleged  Natural  Law  to  little 
but  a  name. 

To  the  writer's  mind,  the  continuance  of  the  use 
of  the  term  in  political  or  legal  science  is  improper 
in  any  sense,  and,  if  retained,  sure  to  introduce  con- 
fusion of  thought.  The  only  possible  value  that  it 
can  have  in  any  field  of  thought  is  in  ethics  proper, 
where  it  may  sometimes  be  used  by  those  who  wish 
to  emphasize  an  alleged  pantheistic  origin  of  moral 
precepts. 

In  the  foregoing  criticism  of  the  Contract  Theory 
nothing  has  been  said  either  as  to  its  legal  or  histori- 
cal invalidity.  So  far  as  it  is  necessary  to  make 
any  argument  upon  these  grounds,  it  may  be  done  in 

^  "The  Law  of  Nature,"  in  the  Annals  of  the  Am.  Acad.  Pol.  and 
Soc.  Sci.,  April,  1891. 


116  THE   NATURE   OF  THE   STATE 

very  few  words.  That  such  a  contract  could  have 
no  legal  force,  is  obvious,  for  ex  liij'potliesi  there  is 
no  antecedent  political  power  or  civil  law  to  deter- 
mine contractual  rights.  And  the  contract  not  being 
itself  legally  binding,  could  not,  of  course,  serve  as  a 
foundation  for  subsequent  legal  rights  and  obliga- 
tions. But,  as  this  chapter  has  shown,  such  a  criti- 
cism goes  but  little  way  towards  invalidating  the 
essential  position  assumed  by  the  Contract  Theory 
writers.  They  rely  not  so  much  on  the  legality  as 
the  moral  force  of  the  alleged  contract,  their  object 
being  the  moral  justification  of  the  right  of  the  State 
to  be.  As  a  matter  of  fact,  as  we  have  seen,  it  was 
Hobbes  himself  who  first  emphasized  the  distinction 
between  moral  and  legal  rules,  and  prepared  the  way 
for  the  present  accepted  definition  of  positive  law. 

\-  -  From  the  historical  standpoint,  the  Contract 
Theory  of  the  origin  of  political  authority  is  unten- 
able, and  confessedly  so  by  some  of  its  adherents.; 

/  Not  only  are  historical  records  wanting  as  to  those 
early  times  when,  if  at  all,  such  compacts  must  have 
been  entered  into;  but  what  historical  evidence 
there  is,  from  which,  by  analogy  and  inference,  primi- 
tive conditions  may  be  imagined,  are  such  as  to  show 

V       its   impossibility.     The  theory  presupposes   individ- 

\uals  as  contracting,  when  the  researches  of  Maine 

and  others  show  that  in  early  times  law  was  appli- 

'  cable  not  so  much  to  the  individual  as  to  the  family, 

and  that,  in  fact,  in  these  early  times  the  individual 

\as  such  counted  for  almost  nothing,  either  in  the  eyes 

of  the  law  or  of  the  political  authority.     There  was 


CRITICISM  OF  THE   CONTRACT  THEORY  117 

thus,  at  thcat  time,  no  idea  of  individuals,  as  such, 
having  either  the  right  or  power  of  severally  enter- 
ing into  a  covenant  or  covenants.  As  Maine  says, 
"■  Whether  they  {i.e.  early  laws)  retain  their  primi- 
tive character  as  Themistes  or  whether  they  advance 
to  the  condition  of  customs  or  codified  texts,  they 
are  binding,  not  on  individuals  but  on  families.  .  .  . 
'  The  movement  of  progressive  societies  has  been  uni- 
form in  one  respect.  Through  all  its  course  it  has 
been  distinguished  by  the  gradual  dissolution  of 
family  dependency  and  the  growth  of  individual  ^ 
obligation  in  its  place.  The  individual  has  been 
steadily  substituted  for  the  family  as  the  unit  of 
which  civil  laws  take  account."^  Or,  as  he  sums 
up  this  law  in  a  single  sentence,  "  The  movement 
has  been  from  one  of  status  to  one  of  contract." 
Researches  also  show  that  th^  further  we  go  back  in 
civilization,  the  more  does  communal  property  tend 
to  swallow  up  private  property ;  while  the  Contract 
Theory  speaks  of  men  submitting  their  property 
and  other  rights  to  the  State  for  its  protection. 
If,  now,  these  are  the  conditions  that  prevailed  at 
the  time  at  which  history  first  catches  glimpse  of 
man,  analogy  and  inference  would  show  that  in 
the  primitive  period  anterior  to  this,  at  which  the 
contract  is  conceived  to  have  been  entered  into, 
the  conditions  would  be  still  less  favorable  to  the 
execution  of  such  an  agreement.  In  addition  to 
this,  there  is  of  course  a  manifest  absurdity  in  con- 
ceiving a  sufficient  mental  qualification,  for  such  a 

1  Ancient  Law,  pp.  161,  1G3. 


118  THE  NATURE   OF  THE   STATE 

formal  act  on  the  part  of  a  people  in  the  very  first 
stages  of  civilization. 

It  is,  however,  a  waste  of  words  and  a  misapplica- 
tion of  energy  to  demonstrate  the  unhistorical  char- 
acter of  this  theory.  As  has  been  already  said,  that 
which  is  sought  by  the  propounders  of  this  explana- 
tion of  the  origin  of  the  State,  is  not  so  much  the 
manner  in  which  the  State  actually  did  originate,  as 
the  determination  of  such  a  theoretical  foundation 
for  the  establishment  of  political  life  as  will  permit 
such  political  authority  to  be  harmonized  with  a 
predicated  individual  right  to  free  self-determination 
of  action. 


CHAPTER   VI 

THE    TRUE    ORIGIN    OF    THE    STATE 

Just  as  we  have  shown  that  it  is,  at  the  bottom,  an 
idea  or  sentiment  that  creates  a  Nation  out  of  an 
aggregate  of  men ;  that  where  without  this  senti- 
mental element  we  have  only  a  mechanical  union,  or 
complexus  of  atoms,  with  it,  we  have  a  higher,  more 
intimate,  permanent,  psychological  unity ;  so,  in  like 
manner,  it  is  true  that  in  the  State,  in  the  body 
politic,  we  have  a  unity  created  out  of  a  mere  sum 
of^individuals  by  means  of  a  sentiment  of  community 
of  feeling  and  mutuality  of  interest,  and  this  sen- 
timent finds  expression  in  the  creation  of  a  polit- 
ical power,  and  the  subjection  of  the  community 
to  its  authority.  As  the  eminent  Austrian  publicist, 
Jellinek,  has  put  it,  "  The  inner  ground  of  the  origin 
of  the  State  is  the  fact  that  an  aggregate  of  persons 
has  a  conscious  feeling  of  its  unity,  and  gives 
expression  to  this  unity  by  organizing  itself  as  a 
collective  personality,  and  constituting  itself  as  a 
volitional  and  active  subject."  ^  That  is  to  say,  in 
effect,  that  this  essential  psychological  element  must 
first  exist  subjectively  in  the  minds  of  the  people, 
and  then  become  objective  in  laws  and  political 
institutions.     It  thus  follows  that  while  this  subjec- 

^  Die  Lehre  von  den  Staatenverhindungen,  p.  257. 
119 


120  THE   NATURE   OF  THE   STATE 

tive  element  of  unity  is  the  essential  element  of  the 
State,  it  alone  is  not  sufficient  to  constitute  a  State. 
The  body  politic  cannot  be  said  to  be  created  until 
the  desires  that  this  feeling  engenders  have  become 
outwardly  realized  by  the  erection  of  a  common  gov- 
erning authority.  Other  conditions  favoring,  or 
at  least  not  hindering,  the  objective  realization  will 
always  follow  the  subjective  inclination.  But,  ex- 
cept in  rare  cases,  there  is  not  this  utter  absence  of 
hindrance.  The  political  status  quo  ante  has  always 
to  be  considered.  Existing  political  institutions 
and  methods  have  the  support  of  tradition,  backed 
by  the  natural  indisposition  of  men  to  change  their 
habits  and  manner  of  life,  especially  when  they  can- 
not foresee  wath  absolute  precision  the  results  that 
will  follow  from  such  a  change.  But,  most  of  all, 
an  existing  political  authority  is  always  supported 
by  an  enormous  weight  of  selfish  interest.  To  the 
desire  to  rule,  which  is  almost  universal  in  the 
human  breast,  is  added  the  pecuniary  and  social 
interests  and  honors  that  are  bound  up  in  an  exist- 
ing Government,  thus  making  those  in  power  reluct- 
ant to  consent  even  to  a  change  in  administration, 
much  less  to  the  establishment  of  a  new  body  politic. 
It  thus  frequently  happens  that  there  exists  in  the 
minds  of  a  community  of  people  a  desire  for  a  polit- 
ical unity  of  a  particular  sort,  and  that  this  desire 
is  of  sufficient  strength  to  maintain  the  unity  of  a 
State,  were  it  once  established  and  organized,  but 
that  objective  conditions  prevent  for  many  years  the 
realization   of   such  an  end.     It  is  only  when   this 


THE   TRUE   ORIGIN   OF   THE   STATE  121 

pent-up  flood  of  feeling  rises  to  sufficient  height  and 
strength  to  burst  the  existing  pohtical  barriers  that 
hold  it  in,  that  a  new  State  is  created. 

As  has  been  said,  the  natural  tendency  of  the 
feeling  of  Nationality  is  to  find  expression  in 
political  unity.  The  two  sentiments,  then,  that  lie 
at  the  basis  of  the  Nation  and  of  the  State  are 
largely  similar.  The  same  conditions  that  tend  to 
create  the  feeling  of  Nationality  tend  also,  in  most 
cases,  to  demand  the  establishment  of  the  State. 
Absolute  identity  of  these  two  sentiments,  however, 
cannot  be  a£6j:med.  It  is  possible,  in  other  words,  to 
have  present  a  well-developed  feeling  of  Nationality, 
with  but  slight  desire  for  political  unity.  On  the 
other  hand,  we  find  instances  in  wdiich  the  establish- 
ment of  political  unity  is  clearly  demanded  by  a 
People,  among  whom  there  is  no  other  claim  of 
Nationality.  The  factors  that  create  the  feeling  of 
Nationality  are  community  of  race,  language,  his- 
torical tradition,  mutuality  of  economic  interests,  and 
like  degree  of  civilization.  That  which  calls  for  the 
establishment  of  political  control  over  definite  terri- 
tory and  community  may  be  nothing  more  than 
political  expediency,  —  the  necessity  for  self-defence 
or  offensive  strength.  Certainly  the  feelings  of 
common  Nationality  were  very  strong  at  the  time 
of  the  severance  of  the  American  colonies  from  their 
mother  country,  yet  independent  political  organiza- 
tion was  demanded  and  obtained.  Strong  feelings  of 
Nationality  were  frequently  disjDlayed  by  the  Greeks, 
especially  when  combating  a  common  foe,  yet  at  no 


122  THE   NATURE  OF   THE   STATE 

time  during  the  height  of  Grecian  prosperity  was 
political  unity  called  for.  At  the  present  day  we  see 
three  distinct  Nationalities  organized  under  the 
Swiss  Government,  with  no  demand  for  separate 
political  autonomy. 

To  those  who  would  say  that  a  national  feeling 
does  not  truly  exist  unless  there  be  demanded  politi- 
cal unity ;  that,  in  fact,  the  desire  for  such  unity  is 
a  necessary  consequence  of  the  feeling  of  Nationality, 
it  is  to  be  replied,  that  to  take  such  a  view  is  to 
give  a  more  intensive  and  exacting  definition  to  the 
sentiment  of  Nationality  than  is  usually  ascribed  to 
it.  It  is  an  obvious  fact  that  we  often  have  in- 
stances of  political  unions  in  which  there  is  an 
absence  of  such  elements  as  community  of  race, 
language,  custom,  and  historical  tradition.  It  is, 
therefore,  impossible  to  identify  the  desire  for  polit- 
ical unity,  even  before  it  obtains  realization,  with 
the  sentiment  of  Nationality,  unless  we  assume  the 
position  that  political  expediency  alone  is  able  to 
create  the  feeling  of  Nationality.  But  to  do  this 
is  not  only  to  go  counter  to  all  accepted  usage  of 
terms,  but  in  fact  entirely  to  destroy  the  very  idea 
of  Nationality,  which  is  supposed  to  rest  upon  other 
than  political  foundations. 

Though  intimately  connected,  it  seems  best;  then, 
to  distinguish  from  each  other  the  feelings  of  Nar 
tional  and  Political  unity.  In  fine,  to  recognize  that 
though  the  desire  for  political  unity  does,  as  a  rule, 
arise  from  and  out  of  a  sentiment  of  Nationality,  yet 
it  may  arise  independently  of  it. 


THE   TRUE   ORIGIN  OF  THE   STATE  123 

Now,  as  has  already  been  made  evident,  the  only 
validity  which  could  be  ascribed  to  a  social  compact 
would  have  to  be  based  upon  a  consciousness,  on  the 
part  of  the  individuals  consenting  to  it,  of  a  moral 
duty  to  keep  one's  engagements  to  another;  —  in 
fact,  upon  the  recognition  of  mutual  rights  and 
obligations.  But  given  in  a  community  this  feel- 
ing of  mutual  rights  and  duties,  and  have  we  not 
already  existing  that  feeling  of  unity,  that  senti- 
ment that  creates  the  State  ?  If,  then,  such  a 
compact  were  thus  entered  into,  it  would  not  be  a 
creative  act,  but  only  a  formal  declaration  of  the 
sentiments  of  community  of  interests  and  feelings 
that  have  already  existed.^ 

It  therefore  appears  that  the  origin  of  the  State  .^v^ 
must  be  conceived  as  an  act  of  a  People  rather  than      r 
qfjndividuals.    The  existence  of  a  common  or  "  Gen- 
eral Will  "  must  be  predicated,  and  the  creation  of 
the  State  held  to  be  due  to  its  volition. 

Now  a  General  Will  is  something  much  different 
from  tlie  sum  of  particular  wills.     Rousseau  himself 
recognized  this,  though  he  did  not  see  that  it  was 
logically  destructive  of  his  theory.     Thus  he  says,    , 
'•There  is  often  a  great  difference  between  the  will  of     1 
one  and  the  General  Will :  one  regards  the  common     \ 

^  "  How  can  the  consciousness  of  obligation  arise,"  says  Green, 
"  without  recognition  by  the  individual  of  claims  on  the  part  of  others 
—  social  claims  of  some  sort  or  other  —  which  may  be  opposed  to 
his  momentary  inclinations?  Given  a  society  of  men  capable  of 
such  consciousness  of  obligation,  constituting  a  law,  according  to 
which  the  members  of  this  society  are  free  and  equal,  in  what  does 
it  differ  from  a  political  society?"  Gicen,  Philosophical  Works,  Vol. 
U.  p.  377. 


124  THE   NATURE   OF  THE   STATE 

interest  only,  the  other  regards  private  interests,  and 
'  is  only  the  sum  of  individual  wills."  ^  Hence,  by  add- 
ing together  a  sum  of  private  interests,  we  can  never 
get  a  public  interest,  no^  from  a  sum  of  private  rights 
X  obtain  a  public  right.  The  General  Will,  as  distin- 
^'  guished  from  the  sum  of  individual  wills,  is  rather  a 
volitional  unit  that  is  obtained  by  extracting  from 
each  of  the  individual  wills  certain  sentiments  and 
inclinations  that  concern  general  interests,  and  from 
a  combination,  equating,  and  balancing  of  them  ob- 
taining a  single  result  that  is  based  upon  elements 
that  exist  in  the  individual  wills,  but  is  thus  distinct 
from  their  sum.  But  even  this  is  a  more  mechanical 
description  of  the  General  Will  than  its  essentially 
unitary  character  properly  permits. 
/  Therefore  when  it  is  attempted  to  create  or  con- 
7  ceive  of  the  creation  of  a  General  Will  superior  to  the 
/  individual  will  by  simply  joining  together  these  wills, 
Vjthe  undertaking  is  foredoomed  to  failure.  By  simply 
uniting  wills  of  a  single  class  we  cannot  hope  to 
create  a  will  of  a  higher  order.  In  the  absence  of 
v^,_j^  such  higher  will,  then,  that  very  capacity  of  individ- 
uals  which  would  enable  them  to  enter  into  a  social 
compact  would  empower  them  to  withdraw  from  it 
at  any  time,  or  to  refuse  assent  to  commands  based 
upon  it.  The  same  moral  force  that  would  urge  men 
to  a  compact  would  urge  them  to  break  it  when 
its    continuance    would     threaten    their     welfare.^ 

1  The  Social  Contract,  Bk.  II,  Chap.  III. 

2  Hobbes  himself  says  :  "  Contracts  being  words  and  breath,  have 
no  force  to  oblige,  contain,  constrain,  or  protect  any  man,  but  what 
it  (sic)  has  from  the  public  sword." 


THE   TRUE   ORIGIN  OF   THE   STATE  125 

(The    Coniract-TJiaoii^errs  in  conceiving  the  State    ^ 
as  .created__Jb;yL-J-Jldividuals  rath^r_than  by  a  People,     j 
It    is    thus    atonnstic__and__£iitipely--4estF«etive---o-f     I 
political   authority,  for.  as  long  as_such. authority     | 
is  made  to  rest  upon  individual  consent,  just  so  loner 
may  such  consent  be  withdrawn. 

It  is  true  that  Hobbes  correctly  outlined  the  nec- 
essarily absolute  character  of   the    State   from  the 
legal  standpoint,  but  it  was  a  result  that  could  not 
logically  be  based  upon  the  Social  Compact  which  he 
predicated.      The  result  of  both  Locke's  and  Rous^ 
seau's  system  is,  if   carried  out  to  the  logical  end,  '"^\ 
subversive  of  all  true  political  authority;  and  for 
much  the  same  reason.     Locke's,  because  it  admits 
a  right  on  the  part  of  the  people  to  resist  the  en- 
forcement of  law  in  certain  cases.     Since,  however, 
the  determination  of  these  cases  is  necessarily  with 
the  people,  there  can  be  no  case  in  which  they  may 
not  assert  this  right.     All  laws  have,  hence,  only 
a  hypothetical  validity,  i.e.  a  validity  dependent  upon 
their  acceptance  as  just  and  expedient  by  the  people 
whose  actions  they  are  intended  to  control.     Rous^, 
seau's  system  is  directly  destructive  of  the   State, 
because  it  openly  refuses  to  governmental  agencies 
any   volitional   power,    and   explicitly   declares   the 
validity  of  all  legislative  acts  to  be  dependent  upon 
an  absolutely  popular  consent.  __^ 

In  a  political  society  every  human  being  may  be 
regarded  in  a  double  aspect ;  as  an  independent  indi- 
vidual endowed  with  freedom  of  self-determination 
of   action ;    and    as    a   citizen,   or    member  of   the 


126  THE  NATURE  OF  THE   STATE 

body  politic  in  which  he  lives.  As  a  citizen,  he 
can  never  be  considered  apart  from  the  whole,  of 
which  he  is  an  integral  and  inseparable  part.  Nor, 
consequently,  can  his  will,  as  such,  be  separated  from 
the  General  Will.  It  is  in  this  second  capacity  that 
he  is  related  to  the  State,  and  contributes  by  his  will 
to  the  formation  of  its  sovereign  will.  And  it  is 
upon  him  in  this  same  capacity  that  the  authority 
of  the  State  is  exercised.  He  is  coerced  by  the  law, 
not  as  a  free  autonomous  person,  but  as  a  con- 
stituent element  of  the  authority  that  coerces  him. 
He  is  an  integral  and  inseparable  part  of  the  po- 
litical body,  and  his  will  cannot  be  separated  from 
*-  its  will. 

The  existence  of  the  State  is  rationally  justi- 
fied because  the  result  of  the  exercise  of  its  au- 
thority is  in  all  cases,  as  a  matter  of  fact,  to 
preserve  freedom  rather  than  to  destroy  it,  to 
enforce  rights  rather  than  to  crush  them,  to  check 
certain  acts  in  order  that  more  important  and 
more  numerous  acts  may  be  made  freely  possible. 
In  a  society  of  men,  mutual  interests  are  an  ab- 
solute necessity.  Freedom  in  society  has,  hence, 
both  a  positive  and  a  negative  side.  Positive,  or 
the  right  of  free  self-determination  of  action ;  nega- 
tive, or  the  restraint  from  the  interference  with  a 
like  freedom  of  others.  To  protect  positive  freedom, 
the  power  of  the  State  is  exercised  in  restraining  the 
actions  of  the  individuals  in  so  far  as  they  would 
interfere  with  this  positive  liberty. 

To   repeat,   then,  what  was   made   plain   in   the 


THE   TRUE   ORIGIN   OF   THE   STATE  127 

last  chcapter,  there  is  no  onus  upon  the  State  to 
justify  its  existence  as  an  infringement  upon  a 
predicated  natural  freedom  of  the  individual.  Such 
a  freedom  we  have  shown  to  be  a  myth  and  an 
impossibility.  Liberty,  as  equivalent  to  a  condition 
in  which  there  exists  a  certain  sphere  of  activity 
in  which  the  individual  is  protected  from  outside 
interference  by  some  power  other  than  that  based 
upon  his  own  physical  strength,  is  only  possible  in 
a  political  community.  Hence,  if  there  be  a  neces- 
sity to  demonstrate  the  moral  right  of  the  State 
to  be,  apart  from,  and  in  addition  to,  the  question 
whether  it  subserves  the  ends  for  which  it  was 
established,  such  a  right  of  existence  may  be  said  to 
rest  upon  the  consent  of  the  People  collectively 
expressed.  That  this  is  so,  is  obvious  from  the  fact 
that  should  the  entire  community,  or  a  dominant 
portion  thereof,  decisively  determine,  in  any  given 
case  to  abolish  all  civil  control  and  to  re-establish 
a  regime  of  complete  animality,  it  could  do  so. 

As  to  the  particular  individual,  therefore,  civic 
subordination  is  one  of  necessity  and  force ;  for 
7ioIens  volens  he  must  submit  to  political  power. 
As  Hume  says  in  one  of  his  essays  in  answer  to 
those  who  maintain  that  the  individual  can,  when 
dissatisfied  with  his  State,  leave  it  for  another; 
this  right  of  emigration  cannot  mean  anything  to 
a  poor  peasant  or  artisan.  "  We  may  as  well  as- 
sert," says  he,  "  that  a  man  by  remaining  in  a 
vessel,  freely  consents  to  the  dominion  of  the  mas- 
ter, although  he  was  carried  on  board  while  asleep 


128  THE   NATURE   OF   THE   STATE 

and  must  leap  into  the  ocean  and  perish  the  mo- 
ment he  leaves  her  .  .  .  The  original  establishment 
(of  Government)  was  formed  by  violence  and  sub- 
mitted to  from  necessity.  The  subsequent  adminis- 
tration is  also  supported  by  power  and  acquiesced  in 
by  the  people  not  as  a  matter  of  choice  but  of  obli- 
gation."^ 

^  From  the  individual  standpoint,  the  power  of  the  State  over  the 
lives  of  its  citizens  is  the  highest  power  possessed  by  it,  —  right  to  life 
being  obviously  the  necessary  basis  of  all  other  rights.  The  exercise 
of  such  a  power  of  itself  refutes  the  idea  that  a  moral  justification  of 
the  right  of  the  State  to  be  can  be  founded  upon  individual  consent, 
impliedly  or  explicitly  given.  For  the  sake  of  securing  other  rights, 
we  cannot  rationally  conceive  of  an  individual  consenting  to  place 
within  the  will  of  another  a  control  over  that  right  which  must  neces- 
sarily be  possessed  in  order  to  enjoy  the  benefit  of  all  other  rights. 
Even  the  absolute  Ilobbes  excepted  (though  illogically)  from  the  sur- 
render of  individual  rights  to  the  State  the  right  of  self -defence,  which 
he  held  to  be  inalienable.  Rousseau,  in  order  to  defend  the  right  of  the 
sovereign  power  to  condemn  the  criminal  to  death,  is  forced  to  resort 
to  the  palpable  quibble  of  maintaining  that  "  it  is  for  the  sake  of  not 
being  killed  by  an  assassin  that  we  consent  to  be  killed  if  we  become 
assassins  "  (Social  Contract,  Bk.  II.  Chap.  V.),  —  an  assertion  as  sensible 
as  the  one  that  he  elsewhere  makes,  that  one  may  be  "  compelled  to 
be  free." 

Of  course  the  necessity  for  such  explanations  of  the  control  of  the 
State  over  the  life  of  the  individual  becomes  unnecessary  when,  as  we 
have  seen,  the  political  power  is  not  founded  upon  the  will  of  the 
individual,  but  upon  that  of  the  People  as  a  unit.  The  right  of 
the  State  to  punish  for  crime,  even  to  the  extent  of  inflicting  the 
death  penalty,  is  the  same  as  that  by  which  any  of  its  activities 
are  exercised.  Lawlessness  is  punished  by  the  State,  not  for  the 
sake  of  vengeance  or  retribution  based  upon  a  breach  of  contract  of 
the  individual  with  the  community,  but  for  the  preservation  of  the 
State's  own  orderly  existence.  For  this  reason  penal  law  is  ordinarily 
designed  to  be  not  only  purutive,  but,  as  far  as  possible,  reformatory 
and  preventive  in  its  effect.  Were  it  designed  to  be  purely  retribu- 
tive, it  would  be  necessary  to  ai)portion  punishment  as  nearly  as  pos- 
sible to  moral  guilt  alone.  But,  as  we  know,  this  aim  is  in  very  many 
cases  avowedly  subordinated  to  such  other  factors  as,  for  example, 
the  nature  of  the  consequences  directly  resulting  from  the  act,  the 


THE   TRUE   ORIGIN   OF   THE   STATE  129 

It  has  been  said  that  an  aggregate  of  men  only 
becomes  a  "People"  when  politically  organized.  It 
might  therefore  be  said,  that  a  State  cannot  be 
considered  as  created  by  a  People,  for  that  would 
necessitate  a  pre-existence  of  this  creating  factor. 
Strictly  speaking,  this  is  true.  The  creation  of  a 
State  and  of  a  People  are  necessarily  synchronous. 
It  is,  therefore,  more  precise  to  say  that  a  State  is 
created  by  a  community  of  men,  which,  by  reason 
of  a  sentiment  of  unity,  is  potentially  a  People, 
and  that  this  community  becomes  actually  such 
when  the  State  is  established. 

It  follows  from  what  has  been  said,  that  this 
transformation  of  a  community  or  of  a  society  into 
a  People,  potentially  or  actually  considered,  cannot 
be  due  to  any  formal  act  on  their  part.  Senti- 
ments and  desires  are  not  thus  formed.  The  neces- 
sity for  the  existence  of  the  subjective  condition  prior 
to  the  objective  creation  of  a  political  organization, 

example  that  it  will  set  to  others,  its  bearing  upon  existing  political 
conditions,  etc.  All  of  these  elements,  that  have  no  bearing  upon 
the  moral  guilt  of  the  offender,  often  determine  the  severity  of  the 
punishment.  In  like  manner,  because  of  the  impossibility  of  the 
State  exercising  a  direct  control  over  man's  motives,  the  political 
power  is  not  properly  concerned  with  religious  beliefs,  nor  with 
religious  customs,  except  in  so  far  as  they  lead  to  actions  that  affect 
the  existence  and  prosperity  of  the  State.  Thus,  in  the  much  de- 
bated problem  regarding  the  proper  province  of  State  and  Church,  we 
may  say  that  the  delimitation  of  their  functions  is  not  determined  by 
the  objects  or  actions  over  which  their  respective  controls  are  exer- 
cised, but  by  the  nature  of  the  sanctions  supplied  to  their  commands, 
and  the  aims  sought  to  be  attained.  The  one  is  necessarily  limited 
to  the  imposition  of  material  physical  sanctions,  and  the  attainment 
of  material  pliysical  aims ;  the  other  to  the  declaration  of  moral  or 
ethical  ideals,  and  the  securing  of  spu'itual  ends. 

K 


130  THE  NATURE   OF  THE   STATE 

makes  impossible  the  assumption  of  a  formal  ori- 
gin of  the  State.  The  logical  result,  therefore,  is^ 
that  it  is  impossible  to  ascribe,  even  in  modern 
times,  a  formal  or  juristic  origin  to  the  State. 
The  adoption  of  a  formal  constitution  cannot  be 
considered  as  a  creative  act.  The  State  is  not, 
thereby,  brought  into  existence,  though  from  the 
historical  standpoint  it  is  for  convenience  properly 
so  considered.  The  solemn  adoption  by  a  people 
of  such  a  fundamental  instrument  is  but  the  act 
through  which  that  which  has  formerly  existed  in 
a  more  or  less  undefined  and  vague  state,  is  brought 
into  definite  and  positive  statement. 

It  may  be  the  fact,  indeed,  that  the  origin  of  the 
State  (as,  for  example,  the  creation  of  a  federal 
State,  by  the  union  of  formerly  independent  States) 
is  apparently  synchronous  with  the  adoption  of  the 
written  constitution  by  which  such  union  is  effected. 
But  it  cannot  be  said  that  such  federal  State  was 
created  by  such  instrument.  The  creating  cause 
was  the  feeling  of  national  unity  which  found  its 
formal  and  juristic  expression  in  the  articles  of 
union.  The  constitution  is  the  instrument  that 
definitely  creates  and  defines  the  organs  through 
which  the  State,  already  subjectively  in  existence,  is 
henceforth  to  exercise  its  activities.  The  essence  of 
the    State   is   the   national   feel  in  o;   that   unites   its 

o  .   ... , 

People,  and  its  written  constitution  is  but  the  formal 
expression  of  the  fundamental  principles  according 
to  which  this  People  propose  to  conduct  their 
political   life.      The   truth   of   this    is    seen   in    the 


THE  TRUE   ORIGIN  OF  THE   STATE  131 

fact  that  a  written  constitution  is  by  no  means 
essential  to  State  life,  and  is,  indeed,  of  very  recent 
invention.  Its  raison  d'etre  is  no  deeper  than  a 
political  expediency  that  is  based  upon  the  definite- 
ness  thus  obtained,  and  the  added  stability  acquired 
by  the  restrictions  that  these  written  instruments 
ordinarily  impose  upon  hasty  and  constant  amend- 
ment. 

From  the  standpoint  of  Public  Law,  it  may  not  be 
necessary  to  go  back  of  a  written  constitution ;  but 
from  the  philosophical  standpoint  the  more  teleological 
view  is  demanded.  Viewed  in  this  latter  aspect,  the 
true  constitution  of  the  State  may  be  said  to  date 
from  the  earliest  beginnings  of  State  life,  when 
first  the  feeling  of  unity  began  to  be  felt  by  the 
people,  and  to  have  developed  pari  passu  as  'the 
feelings  of  national  life  have  grown  and  found  ex- 
pression in  political  organization  and  control. 

The  State  not  Artificial :  not  a  Mechanism.  — 
Leaving  now  this  subject,  which  has  already  too 
long  detained  us,  we  turn  to  one  or  two  collateral 
propositions  that  flow  from  it. 

It  is  clearly  apparent  that  the  State  is  not  to  be 
considered  as  in  any  sense  "artificial,"  or  as  a  "mech- 
anism." The  political  life  of  man  is  as  "  natural "  to 
him  as  is  an  individualistic  existence,  and  his  emer- 
gence from  the  savage  condition  or  so-called  "  State 
of  Nature"  into  political  life,  is  not  to  be  termed  a 
change  from  a  natural  life  to  an  artificial  one.  The 
feelings   that   unite    men   into   social   and   political 


132  THE   NATURE   OF   THE   STATE 

units  are  as  natural  to  them  as  are  any  of  their  in- 
dividualistic impulses.  Government,  on  the  other 
hand,  is  mechanical.  It  is  the  artificial  means  con- 
sciously created  for  formulating  and  executing  the 
will  of  the  State.  Its  form  is  in  all  cases  an  arbi- 
trary one,  and  liable  to  radical  change  by  a  single 
definite  fiat  of  the  State's  will.  Thus,  the  State, 
while  not  a  conscious  creation  of  the  individuals 
composing  it,  nevertheless  operates  through  devices 
mechanically  and  consciously  created,  and  is  influ- 
enced in  its  structure  and  in  many  of  its  activities 
by  objective  conditions. 

A  mechanism  has  been  defined  as  "  a  functional 
totality,  the  construction,  regulation,  and  energizing 
of  which  is  from  without."^  Such  is  Government; 
for  the  General  Will  which  actuates  it  is  not  created 
by,  but  sustains,  it.  There  is  no  innate  life  either  in 
its  parts  or  in  the  whole.  The  State,  on  the  other 
hand,  as  we  have  seen,  has  a  will  of  its  own ;  its^ 
actions  are  self-determined.  There  is  life  and  voli:;^ 
tion  both  in  itself  and  in  its  members.  A.  common, 
conscious,  animating  purpose  pervades  and  vivifies  it. 
It  is  moreover  in  a  continual  state  of  change  and 
growth.  Its  organized  form  is  in  process  of  constant 
modification.  At  no  two  periods  of  its  history  is  the 
manifestation  of  its  life  the  same. 

By  the  above  it  is  of  course  not  intended  to  return 
to  the  instinctive  or  purely  natural  theory  of  the 
ori(>-in  of  the  State,  which  we  have  criticised  in  an 
earlier  portion  of  the  work,  and  which  would  make 

1  F.  M.  Taylor,  The  RUjlit  of  the  State  to  Be,  p.  30. 


THE   TRUE   ORIGIN   OF  THE  STATE  133 

of  the  political  power  an  entity  independent  of  man. 
We  readily  grant  that  there  are  in  man's  nature  cer- 
tain appearances  and  characteristics  that  naturally 
lead  (that  is,  reasonably  may  be  expected  to  lead) 
to  the  development  of  a  political  life.  In  fact,  the 
point  that  we  are  here  making  is,  that  so  natural  is 
the  development  of  this  political  sentiment,  that  it  is 
not  until  the  State's  rise  into  actual  being  that  the 
process  becomes  a  conscious  one  to  the  individuals 
embraced  within  it.  The  State  is  born  when  the 
common  consciousness  of  a  community  reaches  a  cer- 
tain degree  of  preciseness ;  but  since  the  fact  of 
this  point  having  been  reached  is  only  recognizable 
by  the  outward  manifestations  to  which  it  leads,  and 
which  are  necessarily  subsequent  to  it,  it  is  no  more 
possible  for  a  community  to  fix  the  instant  of  its 
creation  as  a  body  politic  than  it  is  for  the  individual 
to  determine  by  memory  the  moment  at  which  he 
became  conscious  of  his  own  identity  and  personality. 
For  these  reasons  we  speak  of  the  State  as  natural, 
though  not  independent  of  man's  agency.  For  man, 
as  himself  a  part  of  Nature,  supplies  the  forces  that 
generate  and  maintain  the  State.  The  necessary 
governmental  organs  must  be  created  through  con- 
scious, human  agency.  Furthermore,  once  generated, 
the  continued  existence  of  the  State  is_almost 
wholly  dependent  upon  man's  own  efforts  and_deter- 
mination.  It  is  this  fact  —  the  perception  by  men 
that  the  continuance  of  political  rule  is  dependent 
upon  their  own  will,  and  that  it  would  be  a  physical 
possibility  upon  their  part  to  destroy  and  live  with- 


134  THE   NATURE   OE  THE   STATE 

out  it  —  that  leads  them  to  demand  a  justification 
for  it,  if  it  be  allowed  to  remain. 

In  describing,  then,  the  State  as  natural,  and  not 
artificial,  we  emphasize  the  largely  unconscious  man- 
ner of  its  growth  and  its  dependence  upon  certain 
essential  human  attributes ;  and,  at  the  same  time 
differentiate  it  from  Government,  which  is  purely 
mechanical.  We  also  anticipate  an  argument  that 
we  shall  hereafter  make  against  that  school  of  think- 
ers who  see  in  the  persistence  of  political  power  a 
necessary  evil,  and  view  its  regulation  as  an  inter- 
ference with  what  they  are  pleased  to  term  the 
"natural"  laws  of  human  life  and  development. 

The  Personality  of  the  State.  —  The  organic  theory 
of  the  State  is  to  be  distinguished  from  that  theory 
which  predicates  personality  of  the  State.  Though 
refusing  to  the  State  an  organic  character,  it  may_ 
properly  be  described  as  a  juristic  person ;  and, 
indeed,  the  idea  of  its  personality  is  the  corner- 
stone of  the   science  of  public  law. 

The  State  is  a  person  because  it  has  a  will  of 
its  own,  that  is  recognized  in  the  national  con- 
sciousness in  a  manner  very  similar  to  that  by 
which  the  feelings  of  an  individual  organism  are 
recognized  by  the  animal  consciousness.  Thus,  the 
law-making  organs  of  government  are  the  instru- 
ments through  which  this  will  is  expressed. 

Psychology  shows  us  that  the  will  of  a  conscious 
being  is  in  all  cases  the  result  of  the  action  and 
inter-action  of  numerous  forces,  —  of  physical  and 
psychical  tendencies,  of  objective  influences,  of  habits, 


THE   TRUE   ORIGIN  OF   THE   STATE  135 

—  and  tliat  the  simplest  acts  of  volition  are  thus 
found  to  be,  when  analyzed,  of  a  most  complicated 
nature.  So  it  is  with  the  will  of  the  State ;  result- 
ing, as  it  does,  from  the  operation  of  innumerable 
forces,  from  motives  selfish  and  unselfish,  moral  and 
unmoral,  from  material  conditions,  from  tendencies, 
customs,  inherited  usages,  racial  characteristics,  and 
intellectual  impulses. 

Jellinek,  in  his  valuable  work  entitled  Gesetz 
und  Verordnung,  has  treated  this  subject  of  the  per- 
sonality of  the  State  as  springing  from  its  posses- 
sion of  a  unified  will  and  purpose,  with  such  lucid 
and_  cogent  reasoning,  that  in  the  two  following  para- 
graphs his  words  are  almost  literally  translated. 

Personality,  he  says,  is  no  figurative  attribute 
of  the  State,  as  is  so  often  maintained.  It  exists  in 
the  same  sense  as  that  of  any  other  person.  A 
person,  truly  speaking,  is  no  concrete  being,  but  an 
abstraction ;  and  personality  is  not  identical  with 
phj^sical  individuality.  Personality  signifies  the 
capacity  for  unified,  continuous,  reasoning  volition. 
There  are  two  kinds  of  unity,  a  physical  and  an 
ideal  one  of  purpose.  Now  it  is  unity  of  purpose 
which  is  the  principal  factor  of  individuation  for  all 
human  things;  and  individuality,  in  all  practical 
thinking,  furnishes  the  teleological  criterion  for  a 
division  between  persons.  Without  the  application 
of  this  idea  of  purpose,  there  exists  in  any  individual 
a  complexus  of  molecules,  but  no  person ;  for  the 
mere  mechanical  conception  gives  us  only  atoms  and 
unions  of  atoms. 


136  THE   NATURE   OF   THE    STATE 

A  teleological  unity  can  be  recognized  in  a  com- 
plexus  of  atoms  when  they  are  conceived  as  held 
together  by  a  common  aim,  even  where  there  does 
not  exist  a  continuous  physical  connection  between 
its  parts.  All  things  that  we  designate  as  individu- 
als are,  if  considered  from  the  purely  materialistic 
standpoint,  a  collection  of  small  units  or  atoms. 
The  natural  unit,  the  atom,  has  no  perceptible  ex- 
istence. It  is  thus  nothing  more  than  the  applica- 
tion of  a  common  principle  of  thought,  to  ascribe 
unity  to  a  plurality  of  men  bound  together  by  a 
common  purpose.^ 

Applying  these  principles  to  a  human  community, 
we  find  that  it  is  the  unity  of  political  purpose  that 
gives  to  the  State  its  attribute  of  personality,  and 
that  it  is  in  this  aspect  as  a  person,  that  the  State 
is  distinguished  from  the  individuals  organized  under 
it.  To  be  sure,  the  State  is  always  and  necessarily 
composed  of  the  citizens  united  under  it,  and  with- 
out citizens  there  would  be  no  State ;  but,  as  thus 
considered,  the  State  is  something  more  than  the 
sum  of  its  parts.  It  has  an  ideal  existence  apart 
from  them,  in  exactly  the  same  sense  that  the 
human  individual  is  something  more  than  a  deter- 
minate amount  of  water,  carbon,  and  a  few  other 
elements.  This  is  really  the  point  that  was  missed 
by  those  who  have  held  to  the  possibility  of  a 
contract  between  individuals  as  the  origin  of  the 
State ;  for  by  no  union  or  surrender  of  purely 
private  rights  is  it  possible  to  create  public  rights ; 

*  Jellinek,  Gesetz  und  Verordnung,  pp.  192  et  seq. 


THE   TRUE   ORIGIN   OF  THE   STATE  I37 

nor  from  a  combination  of  private  persons  to  create  a 
public  person.  The  attributes  of  personality  are  not 
thus  to  be  obtained.  "  From  individuals  as  such," 
as  Bluntschli  says,  "only  an  individual  development 
can  be  obtained.  Upon  private  individuals  only 
private  interests  and  relations  can  be  grounded.  A 
sum  of  individuals  never  is  and  never  can  be  a  unit, 
any  more  than  can  a  heap  of  sand  become  a  statue. 
If  only  the  individual  spirit  and  will  existed  and 
worked  in  the  individual,  the  existence  of  the  State 
as  a  collective  body  which  lives  and  is  determined 
by  a  common  spirit  and  a  unified  collective  will 
would  be  inconceivable."  ^ 

The  legal  personality  of  the  State  is  especially 
evident  in  its  Public  Law  as  distinguished  from  Pri- 
vate Law.  There  the  State  appears  as  endowed  with 
legal  rights  and  duties  analogous  to  those  possessed 
by  individuals.  To  be  sure,  as  we  shall  see,  all 
law  is  of  the  State,  but  not  all  law  has  relation 
directly  to  the  State.  So  far  as  the  rules  of  con- 
duct that  authoritatively  obtain  in  a  political  com- 
munity are  devoted  to  the  regulation  of  interests 
between  individuals  as  such,  they  create  only  pri- 
vate rights  and  obligations,  and  the  State  appears 
only  as  their  enunciator,  and,  if  need  be,  their  en- 
forcer. Such  law  is  therefore  termed  by  publicists „ 
Private  Law.  Distinguished  from  this  class  of  rules 
are  those  that  concern  either  the  organization  of  the 
State  and  the  delimitation  of  the  powers  of  govern- 
ment, or  the  direct  relations  of  the    State   and  the 

^  Geschichte  dcr  neueren  Staatsivissenscha/t,  p.  348. 


138  THE   NATURE   OF  THE   STATE 

individual.  These  are  termed  Public  Laws.  In 
Private  Laws,  as  Holland  points  out,  "  the  parties 
concerned  are  private  individuals,  above  and  be- 
tween whom  stands  the  State  as  an  impartial 
arbiter.  In  Public  Law  also  the  State  is  present 
as  arbiter,  although  it  is  at  the  same  time  one  of 
the  parties  interested."  ^ 

At  the  same  time  it  is,  of  course,  to  be  recognized 
that  this  attribute  of  personality,  thus  ascribed  to  the 
State,  is  a  juristic  conception,  and  is  to  be  distinguished 
from  the  same  term  as  ordinarily  applied  to  man 
as  a  moral  being.  But  in  so  far  as  a  human  being  is 
recognized  by  the  State  as  having  "  rights  "  that  it 
will  enforce  and  protect,  his  individual  personality  is 
of  a  character  precisely  similar  to  that  enjoyed  by 
the  State.  Thus  the  individual  is  a  person  in  the 
juristic  sense  only  because  he  has  legal  rights,  and 
does  not  have  legal  rights  because  he  is  a  person. 
This  we  made  sufficiently  plain  in  our  criticism  of 
the  doctrine  of  Natural  Rights.  In  this  juristic 
sense  there  can  be  human  beings  who  are  not  at 
the  same  time  persons,  as,  for  example,  slaves.  On 
the  other  hand,  there  may  be  legal  personality  apart 
from  physical  individuality ;  as,  for  example,  cor- 
porations, or  the  State  itself. 

When,  however,  we  come  to  apply  the  attribute 
of  personality  to  man  as  a  moral  being;  that  is, 
to  him  considered  as  not  only  responsible  for  out- 
ward acts  but  for  inward  intentions  and  motives, 
we  have,  of  course,  a  different  conception.     Man  is 

1  Elements  of  Jurisprudence,  6th  ed.  p.  117. 


THE   TRUE    ORIGIN   OF   THE   STATE  139 

then  conceived  as  an  independent  individual,  apart 
from  the  body  politic,  and  as  setting  himself  the 
standard  to  which  his  actions  shall  conform.  His 
personality  is  then  an  ethical  conception.  Thus, 
while  in  the  State  we  have  simply  a  legal  personality, 
we  have  in  the  human  being  a  double  personality ; 
first,  as  an  individual  endowed  with  rights  and 
obligations  as  regards  his  relations  to  other  indi- 
viduals and  to  the  political  community  in  which  he 
lives;  and,  secondly,  as  an  individual  endowed  with 
reason  and  volitional  power,  and  recognizing  a  duty 
to  strive  disinterestedly  to  make  his  life  conform  to 
the  highest  moral  and  ethical  ideals. 

That  which,  moreover,  further  distinguishes  the 
State  as  a  juristic  person  from  the  human  being  as 
a  person,  is  the  fact  that  for  the  realization  of  its 
aims  the  State  must  depend  upon  the  services  of 
these  human  beings.  That  is  to  say,  the  State's  per- 
sonality is  not  embodied  in  a  concrete  physical  frame 
of  its  own,  as  is  man's.  For  the  attainment  of  the 
will  of  this  discreet  person,  it  is  therefore  necessary 
that  certain  individuals  shall  serve  as  its  mouth- 
pieces and  executive  agents.  When  so  officiating, 
these  persons  give  expression  and  execution  to  no 
will  of  their  own,  but  purely  and  simply  to  the 
will  of  the  State.  Therefore,  governmental  agents 
acting  in  conformity  to  law  are  but  passive  agents, 
mere  organs.  The  instant  that  they  exceed 
the  legal  competence  of  their  powers,  they  no 
longer  represent  the  State's  will,  nor  are  they  its 
organs.      They   then   appear    but   as   private    indi- 


V 


140  THE  NATURE  OF  THE   STATE 

vidiials,  and,  as  such,  are  individually  responsible 
for  their  acts. 

Any  public  official  from  the  lowest  to  the  highest 
has,  then,  in  addition  to  his  moral  personality,  a 
twofold  being;  as  a  private  individual  with  legal 
rights  and  obligations,  and  as  an  organ  of  the 
State.  In  the  one  he  has  a  will  of  his  own ;  in 
the  other,  he  is  but  the  medium  through  which 
the  supreme  political  will  is  expressed  or  executed. 
Only  in  the  case  of  the  completely  autocratic  sover- 
eign is  this  representative  will  so  wide  as  to  be  in 
practical,  if  not  actual,  identity  with  his  individual 
will.  All  constitutional  law,  therefore,  in  so  far  as 
it  delimits  the  competence  of  governmental  officials, 
fixes  thereby  the  boundaries  beyond  which  their 
actions  are  no  longer  to  be  considered  as  those  of 
the  State,  but  as  actions  of  their  own. 

It  is,  thus,  sufficiently  accurate  for  present  purposes 
to  characterize  the  whole  Government  of  a  politically 
organized  community,  as  the  organ  of  political  con- 
sciousness, and  as  the  means  through  which  the  po- 
litical will  is  expressed.  The  existence  of  defects  in 
''  its  organization,  and  the  intermediation  of  selfish  and 
corrupt  influences,  prevent,  in  all  States,  the  formula- 
tion of  a  general  will  free  from  the  admixture  of 
particular  elements ;  and  hinder  the  exact  perform- 
ance of  that  will  when  formulated.  Hence  it  is,  that 
there  is  ever  a  disparity  between  the  real  political 
ideas  of  a  community  and  the  actual  utterances  of 
the  State  as  contained  in  its  law.  The  test  of 
good  Government  is  the  facility  it   affords  for   the 


THE   TRUE   ORIGIN   OF   THE   STATE  141 

formulation  of  an  enlightened  and  intelligent  Gen- 
eral Will,  and  the  nearness  with  which  its  action 
harmonizes  with  such  "Will  when  so  formulated.  The 
advance  of  constitutional  and  popular  Government 
means  that  this  result  is  being  achieved  to  an 
increasing  extent.  As  Professor  Ward  says, "  Govern- 
ment is  becoming  more  and  more  the  organ  of  social 
consciousness,  and  more  and  more  the  servant  of  the 
Social  Will.  Our  Declaration  of  Independence,  which 
recites  that  Government  derives  its  just  powers  from 
the  consent  of  the  governed,  has  already  been  out- 
grown. It  is  no  longer  the  consent,  but  the  posi- 
tively known  will  of  the  governed,  from  which 
Government  now  derives  its  powers."  ^ 

^  The  Psychic  Factors  of  Civilization,  p.  oOl. 


CHAPTER  VII 

THE   NATURE    OF   LAW 

The  State  has  been  defined  as  a  society  viewed 
from  its  organized  side,  that  is,  considered  in  its 
aspect  as  a  political  organization  for  the  attainment 
of  an  orderly  existence  and  a  possible  development. 
In  the  effectuation  of  these  purposes  its  activities 
are  largely  manifested  in  the  utterance  and  enforce- 
ment of  commands  addressed  to  its  citizens.  Such 
commands  we  designate  laws,  and  in  the  aggregate 
they  constitute  what  is  known  as  "  the  law  of  the 
land." 

It  is  recognized,  however,  that  in  any  given  com- 
munity this  body  of  legal  principles  is  by  no  means 
a  homogeneous  whole,  but  composed  of  elements 
that  vary  not  only  as  to  their  manner  of  statement, 
but  especially  as  to  their  source. 

First  of  all,  there  are  those  principles  which  are 
to  be  found  embodied  in  the  formal  legislative  acts  of 
the  State,  and  termed  Statutes.  Secondhj,  there  is 
that  large  body  of  legal  principles  that  are  enforced 
by  the  judicial  tribunals  of  a  country,  but  whose  ori- 
gin it  is  impossible  to  discover  in  any  formal  decla- 
rations of  the  will  of  the  State,  and  whose  validity  is 
commonly  considered  to  rest  upon  custom.  Thirdly, 
there  is  in  every  State  that  body  of  fundamental  prin- 

142 


THE  NATURE   OF  LAW  143 

ciples,  written  or  unwritten,  that  controls  the  organi- 
zation of  the  State  itself  and  the  scope  and  manner 
of  exercise  of  its  governmental  powers.  These  prin- 
ciples are  termed  constitutional  laws,  and  though 
not,  as  a  rule,  when  written,  enunciated  through  the 
ordinary  legislative  mouthpiece  of  the  State,  are  con- 
sidered as  expressing  the  highest  will  of  the  State. 
They  differ  from  statutory  and  customary  law,  not 
only  as  to  their  formal  source,  but  also  as  to  their 
prevailing  power  when  in  apparent  contradiction  to 
them.  Fourthly,  and  finally,  there  is  that  aggregate 
of  rules  that  control  the  relations  of  a  State  to 
other  States,  commonly  known  as  International  Law. 
These  last  differ  from  the  three  preceding  classes 
of  principles  not  only  as  to  their  source,  but  as  to 
their  manner  of  enforcement.  It  will  be  necessary, 
indeed,  to  consider  whether  they  may  be  properly 
termed  laws  at  all. 

It  is  the  purpose  of  this  chapter  to  consider  in  a 
general  way  these  various  jural  elements ;  to  investi- 
gate their  origin  and  legal  validity,  and  thus,  finally, 
to  discover,  so  far  as  it  is  possible,  the  part  played 
by  the  State  in  their  creation.  There  are  of  course 
other  questions  of  a  theoretical  importance  that  arise 
in  connection  with  an  analysis  of  the  legal  ideas  of  a 
community ;  as,  for  example,  the  distinctions  between 
law  and  ordinance,  between  laws  general  and  particu- 
lar, public  and  private  law,  civil  and  criminal,  per- 
manent and  temporary  laws,  laws  passed  by  bodies 
of  unlimited  or  original  competence,  and  those 
enacted  by  bodies  of  limited  or  delegated  authority, 


144  THE  NATURE   OF  THE   STATE 

etc.,  etc.  All  these  questions,  and  many  others, 
have  to  be  considered  in  a  general  treatise  upon 
the  nature  of  law,  but  for  the  purpose  of  this  essay 
it  is  necessary  to  consider  only  the  nature  of  law  in 
general,  and  to  determine  the  part  played  by  the 
State  in  its  creation.  Especially  in  connection  with 
this  last  inquiry  it  will  be  important  to  consider 
whether  it  is  enforcement  by  the  State  that  elevates 
certain  principles  of  conduct  to  the  title  of  law, 
or  whether  the  distinguishing  characteristic  is  to 
be   elsewhere   discovered. 

''      There  are  two  ways  in  which  we  may  approach 
this  examination. 

First,  by  a  historical  inquiry  into  the  manner  in 
which  these  principles  have  arisen  ;  and, 

Secondly,  by  an  analysis  of  these  rules  as  they  now 
exist,  and  a  classification  of  them  according  to  their 
form  of  expression,  their  comparative  validity  and 
their  method  of  ascertainment. 

From  both  of  these  methods  we  can  obtain  in- 
formation that  will  assist  us  in  our  inquiry,  but 
neither  alone  is  sufficient.  The  results  obtained  by 
the  first  will  afford  the  substantial  grounds  upon 
which  to  proceed  to  the  analysis  demanded  by  the 
second. 

The  Growth  of  Law.  —  The  early  history  of  societies 
and  of  the  ideals  and  rules  according  to  which  their 
interests  were  regulated,  demonstrates  that  custom 
has  been,  the  world  over,  the  earliest  means  of  social 
regulation.  The  rules  of  conduct  thus  provided  were 
not  consciously  created,  but  came  into  existence  by 


THE   NATURE   OF   LAW  145 

an  imperceptible  process  of  growth  as  a  reflex  from 
the  feelings  of  order,  justice,  and  utility  that  ex- 
isted in  the  minds  of  the  people.  So  far  then  as 
the  creation  of  first  legal  principles  is  concerned,  no 
direct  action  of  the  State  is  to  be  discovered. 

Now  it  may  be  conceived  that  with  the  earliest 
stages  of  social  evolution,  regulation  of  private  con- 
duct such  as  is  afforded  by  custom  alone  is  of  suf- 
ficient force  to  produce  results,  if  not  satisfactory,  at 
least  endurable.  In  such  primitive  stages  of  social 
development  common  interests  are  few,  and  of  the 
simplest  character,  and  the  utility  and  the  justice  of 
the  customary  rules  that  control  them,  are  clearly 
apparent  to  all.  Furthermore,  the  disorder  that 
arises  from  their  occasional  violation,  and  the  per- 
sonal retaliation  that  usually  follows,  is  not  seriously 
grievous  to  a  community  in  which  the  sense  of  order 
has  been  but  slightly  cultivated,  and  whose  political 
organization  is  of  the  crudest  and  most  unsensitive 
character. 

But  such  conditions  can  be  maintained  only  as 
long  as  social  relations  remain  comparatively  simple, 
and  while  their  development  is  gradual  and  unin- 
terrupted by  sudden  or  violent  changes,  such  as  are 
introduced  by  migration,  by  conquest,  or  by  a  transi- 
tion from  a  hunting  and  fishing  stage  of  life  to  an 
agricultural  one,  or  from  a  previously  peaceful  to  a 
warlike  mode  of  existence. 

With  the  very  first  steps  in  social  development, 
then,  custom,  from  its  inherent  nature,  must  prove 
inadequate   for    the    regulation   of   social    interests. 


V 


146  THE  NATURE   OF   THE   STATE 

This  in  two  ways.  In  the  first  place,  regulation  of 
conduct  by  customary  law  wholly,  is  suited  only  to 
a  community  whose  interests  are  not  only  simple, 
but  homogeneous  and  apparent.  When  either  con- 
flicting interests  arise,  or  controversies  spring  up  in 
which  there  is  doubt  concerning  thtj  usual  mode  of 
conduct,  the  force  of  custom,  such  as  it  has,  is  lost. 
There  are  then  required  the  services  of  the  judge  who 
shall  decide  as  to  the  comparative  merits  of  the 
interests  that  conflict,  and  determine  what  cus- 
tomary principle  is  applicable.  Secondly,  as  social 
relations  become  complex,  custom  fails  to  satisfy  the 
demands  laid  upon  it,  because  of  its  inability  to 
provide  with  sufficient  promptness  new  rules  for  the 
regulation  of  new  interests  as  they  arise.  The 
growth  of  customary  rules  is  necessarily  very  slow, 
their  age  giving  to  them  an  essential  credential  for 
recognition ;  and  where,  as  civilization  advances,  new 
interests  are  arising  in  increasing  number,  it  neces- 
sarily results  that  conditions  arise  with  greater  fre- 
quency in  which  some  regulation  is  necessary,  and 
yet  which  are  so  suddenly  born,  so  novel,  or  so  in- 
tricate, that  custom  has  not  provided  or  cannot  pro- 
vide rules  for  their  regulation.  Thus  custom  early 
fails  as  a  creator  of  law. 

Thus  the  very  first  appearance  of  social  complex- 
ity makes  apparent  the  indefiniteness  of  customary 
law,  and  at  the  same  time  the  increasing  sense  of 
order  and  justice  that  attends  increasing  civiliza- 
tion, makes  consciously  felt  the  evils  and  injustice 
resulting  from  the  uncertain  and  the  irregular  sane- 


THE   NATURE   OF   LAW  147 

tion  supplied  by  public  opinion  and  private  might. 
The  appreciation,  however,  that  there  is  needed  the 
deliberate  creation  of  general  jural  ideals  other  than 
those  provided  by  tradition  and  customary  con- 
duct, involves  a  species  of  reasoning  that  arises 
only  at  a  later  date,  and  in  a  more  advanced  state 
of  civilization. 

The  manner  in  which  the  State  first  enters  this 
field  is  as  the  interpreter  and  enforcer  of  custom, 
rather  than  as  the  creator  of  new  rules  of  conduct.^ 
We  may  conceive  how,  as  contested  cases  arise 
in  primitive  communities,  in  which  there  is  no 
customary  law  apparent  as  applicable,  these  cases 
are  naturally  referred  for  decision  to  those  whose 
judgments  will  be  of  such  weight  as  to  carry 
with  them  the  prospect  of  their  being  accepted. 
Known  wisdom  and  impartiality  of  mind  will  be 
qualities  that  will  be  sought  for  in  such  judges,  but 
that  which  will  be  most  desired  will  be  a  decision 
from  those  in  whom  lies  the  power  of  coercively 
enforcing  their  decisions  if  necessary.  Such  judges 
will  of  course  be  found  in  those  having  author- 
ity in  the  community,  and  representing  the  State. 
The  decisions  of  such  will  be  at  first  but  expres- 
sions regarding  the  justice  and  rights  involved  in 
the  particular  cases.  There  will  then  be  no  idea 
of  the  judge  formally  interpreting  and  declaring 
general  rules.      Each  case  will  be  passed  upon  ac- 

^  In  the  few  following  paragraphs,  in  which  is  sketched  the 
development  of  law,  the  author  has  been  greatly  indebted  to  the 
luminous  account  given  in  Lightwood,  The  Nature  of  Positive  Law, 
Chap.  II. 


148  THE   NATURE   OF  THE   STATE 

cording  to  its  own  merits  as  they  appear  in  tlie  eyes 
of  the  judge.  This  we  may  term  the  purely  empiric 
stage  of  the  law,  in  which  particular  facts  alone  de- 
termine the  decisions  to  be  rendered. 

By  degrees,  however,  as  substantially  similar  cases 
arise,  former  decisions  will  naturally  have  their 
weight.  Thus,  gradually,  general  rules  will  be  es- 
tablished, according  to  which  all  cases  of  similar 
nature  will  be  governed.  These  rules  will  also  con- 
stitute the  material  from  which,  by  analogy,  still 
other  legal  rules  will  be  deduced.  As  time  goes  on, 
these  judicially  determined  rules  will  continually 
augment  in  number,  and,  at  the  same  time,  by  a 
perfectly  natural  process,  increase  in  definiteness  and 
rigidity  as  well. 

This  very  definiteness  and  rigidity,  however,  (so 
essential  to  order  in  the  earliest  stages  of  social 
development,  when  the  great  need  is  not  so  much 
for  good  law  as  for  definite  and  acknowledged  law) 
necessitates  a  new  phase  of  legal  growth.  With  the 
advance  of  civilization  new  conditions  and  new  inter- 
ests of  life  arise,  and  in  many  cases  the  rules  that 
have  been  thus  definitely  established  become  in  a 
greater  or  less  degree  inapjolicable  ;  and,  when  strictly 
applied,  fail  to  satisfy  the  better  sense  of  justice  that 
has  developed  in  the  minds  of  the  people.  When 
such  cases  arise,  the  judge  is  placed  between  two 
alternatives ;  either  to  modify  the  existing  rule  of 
law  in  behalf  of  justice  in  the  particular  case, 
and  thereby  to  introduce  uncertainty  into  the  law ; 
or,  to  apply  the  rule  in  all  its  severity,  and  thereby 


THE  NATURE   OF  LAW  149 

to  inflict  present  injustice.  Of  these  two  evils,  the 
tendency  will  of  course  be  to  select  the  lesser.  If 
the  circumstances  of  the  case  be  exceptional  and 
unlikely  often  to  occur  again,  or  the  interest  in- 
volved be  a  small  one,  the  probability  is  that  the 
existing  law  will  be  strictly  applied.  If,  however, 
large  and  numerous  interests  are  concerned,  and 
the  question  is  one  likely  to  be  repeatedly  raised, 
the  application  of  the  rule  will  generally  be  modi- 
fied, if  by  any  strained  construction  it  may  be  so 
altered  in  effect  if  not  in  form,  that  justice  may 
be  done,  and  the  law  brought  into  harmony  with 
the  sense  of  right  residing  in  the  community  and 
into  accord  with  the  demands  of  social  utility.  In 
extreme  cases  also  new  rules  will  often  be  created 
by  the  simple  dicta  of  the  judges,  without  reference 
to  the  old  rule. 

Thus,  through  the  establishment  of  new  principles 
by  analogy  from  old  ones,  by  strained  constructions, 
and  by  the  independent  dicta  of  judges,  the  strict- 
ness of  the  old  law  is  corrected,  and  opportunity 
given  for  the  introduction  of  new  principles  of  law 
that  conform  more  nearly  with  the  changed  con- 
ditions of  developing  social  life. 

This  process  of  legal  development  is  perfectly 
represented  by  the  growth  of  the  equity  jurisdiction 
in  the  English  Law,  and  by  the  modification  of  the 
strict  jus  civile  of  the  Romans  by  the  Praetorian 
legislation,  and  the  application  of  what  was  termed 
jus  singidare. 

Still  another  instrumentality  through  which  the 


Y^ 


150  THE   NATURE    OF   THE   STATE 

courts  have  broadened  the  application  of  old  laws 
to  meet  new  cases,  while  ostensibly  and  avowedly 
exercising  only  the  judicial  function  of  interpreting 
and  applying  existing  law,  has  been  the  use  of  legal 
fictions.  Such,  for  example,  was  the  fiction  of  the 
Roman  law  according  to  which  the  wife  was  con- 
sidered the  legal  daughter  of  the  husband ;  and  that 
of  the  English  law,  that  she  and  her  husband  con- 
stitute but  one  person.  Of  similar  character,  in  the 
English  law,  are  the  fictions  of  fine  and  recovery, 
that  of  considering  the  defendant  as  in  the  custody 
of  the  Marshal  of  the  court,  whereby  the  Court  of 
Queen's  Bench  established  its  jurisdiction  in  Com- 
mon Pleas,  the  fictitious  parties  in  actions  of  eject- 
ment, etc. 

It  is  impossible  to  overestimate  the  influence  of 
this  element  in  the  growth  of  law.  As  is  w^ell 
known,  so  powerful  an  instrument  did  this  become 
in  the  hands  of  the  English  judges  that  acts  of 
Parliament  were  frequently  nullified  and  in  some 
instances  made  to  have  an  effect  exactly  opposite  to 
that  intended  by  their  enactors.  Jeremy  Bentham, 
who  most  strongly  reprobated  this  method  of  manu- 
facturing law,  described  a  legal  fiction  as  "  a  wilful 
falsehood,  having  for  its  object  the  stealing  legis- 
lative power  by  and  for  hands  which  could  not  or 
durst  not  openly  claim  it,  and  but  for  the  delusion 
thus  produced  could  not  exercise  it."  This,  how- 
ever, is  harsh  criticism,  its  use  being  in  almost 
all  cases  founded  upon  the  desire  of  the  courts 
to    obtain   necessary   reform   without    entirely    and 


THE   NATURE   OF   LAW  151 

openly  repudicating  the  abrogated  law.  The  value 
of  fictions  is  more  correctly  stated  by  Blackstone, 
when  he  says,  "  This  maxim  is  ever  invariably 
observed,  that  no  fiction  shall  extend  to  work 
an  injury ;  its  proper  operation  being  to  prevent  a 
mischief  or  remedy  an  inconvenience  that  might 
result  from  the  general  rule  of  law.  So  true  it  is 
that  ill  fictione  juris  semj^er  subsistit  cequitas.'' 

It  is  to  be  remembered,  moreover,  that  throughout 
all  this  course  of  manufacture  of  laws,  both  substan- 
tive and  adjective,  the  courts  have  never  openly 
claimed  this  creative  power.  They  have  ever  veiled 
their  originative  action  under  the  guise  of  judicial  in- 
terpretation of  laws  that  are  presumed  to  be  already 
created  by  custom  or  by  sovereign  command.  They 
have  ever  avowed  themselves  as  controlled  by  the 
law  as  it  is  at  the  time  of  the  accruing  of  the  cause 
of  action.  However  novel  the  principle  of  law 
enunciated,  it  has  always  been  claimed  to  rest  upon 
prior  determined  legal  principles.  Judge  Cooley  has 
stated  this  method  of  growth  in  the  following  words, 
which  we  give  in  extenso :  — 

"  The  code  of  to-day  is  therefore  to  be  traced  rather  in  the 
spirit  of  judicial  decisions  than  in  the  letter  of  the  statute. 
The  process  of  growth  has  been  something  like  the  following : 
Every  principle  declared  by  a  court  in  giving  judgment  is  sup- 
posed to  be  a  principle  more  or  less  general  in  its  application, 
and  which  is  applied  under  the  facts  of  the  case,  because,  in 
the  opinion  of  the  court,  the  facts  bring  the  case  within  the 
principle.  The  case  is  not  the  measure  of  the  principle  ;  it 
does  not  limit  and  confine  it  within  the  exact  facts,  but  it  fur- 
nishes an  illustration  of  the  principle  which  perhaps  might 


152  THE   NATURE   OF   THE    STATE 

still  have  been  applied  had  some  of  the  facts  been  different. 
Thus,  one  by  one,  important  principles  become  recognized 
through  adjudications,  which  illustrate  them,  and  which  con- 
stitute authoritative  evidence  of  what  the  law  is  when  other 
cases  shall  arise.  But  cases  are  seldom  exactl}'-  alike  in  their 
facts;  they  are,  on  the  contrary,  infinite  in  their  diversities. 
And  as  numerous  controversies  on  different  facts  are  found 
to  be  within  the  reach  of  the  same  general  principle,  the  prin- 
ciple seems  to  grow  and  expand,  and  does  actually  become 
more  comprehensive,  though  so  steadily  and  insensibly  under 
legitimate  judicial  treatment  that  for  the  time  the  expansion 
passes  unobserved.  But  new  and  peculiar  cases  must  also 
arise  from  time  to  time,  for  which  the  courts  must  find  the 
governing  principle  ;  and  these  may  either  be  referred  to  some 
principle  previously  declared,  or  to  some  one  which  now  for 
the  first  time  there  is  occasion  to  apply.  But  a  principle 
newly  applied  is  not  supposed  to  be  a  new  principle ;  on  the 
contrary,  it  is  assumed  that  from  time  immemorial  it  has 
constituted  a  part  of  the  common  law  of  the  land,  and  that 
it  has  only  not  been  applied  before  because  no  occasion 
has  arisen  for  its  application.  This  assumption  is  the  very 
groundwork  and  justification  for  its  being  applied  at  all,  be- 
cause the  creation  of  new  rules  of  law,  by  whatsoever  author- 
ity, can  be  nothing  else  than  legislation;  and  the  principle 
now  announced  for  the  first  time  must  always  be  so  far  in  har- 
mony with  the  great  body  of  the  law  that  it  may  naturally 
be  taken  and  deemed  to  be  a  component  part  of  it,  as  the 
decision  assumes  it  to  be."  ^ 

/     In  addition  to  these  instrumentalities  for  the  crea- 
7-     tion  of  legal  principles,  is   also  another  agency  by 

1  Tort.?;.,  pp.  12,  lo.  For  a  careful  study  of  "Case-Law,"  see  Clark, 
Practical  Jurisprudence,  Part  II.  Cliaps.  III.  to  VI.  inclusive.  "Well 
worthy  of  notice  is  also  the  essay  of  Mr.  E.  R.  Thayer  entitled 
"  Judicial  Legislation :  its  Legitimate  Function  in  the  Development 
of  the  Common  Law,"  contributed  to  the  Harvard  Law  Review,  V. 
p.  172. 


THE  NATURE   OF  LAW 


153 


no  means  unimportant.  We  refer  to  scientific  com-  \ 
mentaries  upon  law.  The  work  of  jurists  in  this 
respect  is  of  two  kinds,  logical  and  creative.  In  ^ 
the  first  place,  they  collect  and  arrange  in  system- 
atic order,  customs,  adjudications,  and  enactments, 
and  from  them  deduce  rules  of  a  more  general  and 
therefore  philosophical  character  than  have  hitherto 
been  recognized  by  the  courts.  They  thus,  as  it 
were,  crystallize  into  definite  and  logical  statement 
those  feelings  of  order  and  justice  which  have  previ- 
ously existed  only  in  a  vague  and  indefinite  way. 
The  systematic  arrangement  of  these  established 
laws  serves  also  to  indicate  the  gaps  that  remain 
to  be  filled  by  subsequent  enactment.  At  the  same 
time,  by  giving  the  philosophical  grounds  upon 
which  these  rules  are  based,  the  premises  are  fur- 
nished from  which,  by  analogy  and  logical  deduction, 
the  rules  so  needed  may  be  obtained.  In  the  second 
place,  in  so  far  as  these  scientific  law  writers  enun- 
ciate rules  not  based  on  previously  determined  jural 
principles,  but  merely  upon  their  own  conceptions  of 
justice  and  utility,  and  these  rules  are  accepted  and 
enforced  by  the  courts,  to  that  extent  their  work 
may  be  described  as  not  onl}^  illuminative  of  present 
and  suggestive  of  future  law,  but  as  itself  creative  of 
principles  of  law. 

The  time  comes,  however,  when  even  all  of  these 
methods  of  'legal  growth,  co-operating,  no  longer  sat- 
isfy the  demands  of  developing  political  life.  A  more 
adequate  means  is  demanded  for  the  creation  of  legal 
rights   and    legal   obligations,  —  one    that   shall    be 


164  THE   NATURE   OF  THE    STATE 

more  direct  and  more  immediate  in  its  action.  Thus, 
in  response  to  this  demand,  has  arisen  the  legislative 
function  proper  of  the  State,  —  a  function  in  every 
case  historically  shown  to  have  been  posterior  in 
point  of  assumption  by  the  State  to  that  of  legal 
interpretation  and  application. 

A  study  of  the  growth  of  legislation  reveals  the 
comparative  recency  of  the  State's  entrance  into 
this  field,  to  any  considerable  extent,  as  the  avowed 
and  direct  creator  of  law.  Especially  is  this  true 
of  Private  Law.  We  may  say,  indeed,  that  until 
the  seventeenth  century  a.d.  the  law-making  pow- 
ers of  Governments  were  exercised  almost  solely 
in  the  field  of  public  and  administrative  law ; 
the  private  relations  between  subjects  being  left 
to  the  control  of  custom  and  the  courts,  or  to 
local  administrative  agents  acting  in  their  judicial 
capacities. 

It  is  true  that  in  despotic  Governments,  before 
political  powers  were  limited  by  definite  provisions, 
those  in  authority  claimed  a  control  over  the  citizen 
and  all  his  private  rights.  But  such  control  was 
commonly  exercised,  not  with  the  purpose  of  creating 
general  rules,  but  only  in  particular  and  exceptional 
instances,  where  individual  interests  happened  to 
touch  the  interests  of  those  in  power.  It  was  only 
tentatively,  and  by  degrees,  that  the  central  law- 
making bodies  began  to  undertake  the  general  and 
uniform  control  of  matters  other  than  those  directly 
concerned  with  the  dignity,  military  strength,  and 
fiscal  prosperity  of  the  State.    Even  where  legisla- 


THE  NATURE   OF   LAW  I55 

live  bodies  of  a  representative  character  were  early 
established,  as  in  England,  the  original  purposes  for 
which  they  were  created  were  those  of  advice  to, 
and  control  of,  the  executive  in  matters  of  public 
administration,  (especially  of  taxation)  rather  than 
for  the  regulation  of  private  rights  ;  and  for  many 
years  their  activities  were  almost  solely  limited  to 
the  attainment  of  these  ends. 

As,  however,  these  legislative  bodies  broadened 
the  representative  basis  upon  which  they  rested, 
and  as  the  consciousness  of  their  own  power,  which 
followed  from  knowledge  that  they  acted  for  the 
entire  nation  and  had  its  support,  increased  in  ex- 
tent, the  inevitable  tendency  was  for  them  to  exer- 
cise in  fuller  degree  this  power  thus  knowingly 
possessed.  Thus  it  is  that  the  enormous  increase 
in  legislative  activity  that  has  characterized  modern 
times  has  been  intimately  connected  with  the  growth 
of  popular  representative  Government. 

The  vastly  superior  efficiency  in  the  creation  of 
law  of  legislative  enactment^  over  custom  or  judicial 
interpretation  is  easily  apparent.  By  means  of  a 
single  statutory  enactment,  a  legal  regulation  of  com- 
plicated interests  is  established,  that  it  would  take 
custom  many  years  to  create,  even  were  it  ever  able 
to  evolve  satisfactory  principles.  Even  judge-made 
law,  though  more  directly  created  than  customary 
law,  does  not  obtain  absolute  stability  until  repeat- 
edly accepted  by  other  courts. 

Utility  and  propriety  of  exercise  of  this  legislative 
power  once  granted,  and  its   efficiency  once    recog- 


156  THE  NATURE   OE  THE   STATE 

nized,  all  the  conditions  of  modern  life  tend  to 
encourage  its  wider  use.  The  increasing  specializa- 
tion of  governmental  functions,  the  greater  appre- 
ciation of  the  danger  of  injustice  involved  in  per- 
mitting those  entrusted  with  the  application  of  law 
to  manufacture  it  (not  to  speak  of  the  uncertainty 
introduced  into  the  law  by  such  means),  the  perfec- 
tion of  legislative  methods  (as,  for  example,  standing 
committees  and  other  contrivances),  and,  finally,  the 
enormous  increase .  in  the  complexity  and  number 
of  social  interests  to  be  regulated  ;  —  all  these  causes 
tend  more  and  more  to  cast  the  burden  of  creating 
law  upon  the  formal  law-making  branch  of  the  State. 
To  such  an  extent  has  this  movement  already  gone, 
that  at  the  present  day,  so  accustomed  are  we  to  look 
to  our  legislatures  for  our  laws,  the  part  played  by 
custom  and  courts  in  the  development  of  our  jural 
ideals  is  largely  overlooked. 

In  a  general  way,  the  sources  of  Law  have  now 
been  indicated.  Defining  the  law  of  the  land,  as  we 
have  thus  far  used  the  term,  as  that  body  of  prin- 
ciples applied  by  the  courts  in  the  exercise  of  their 
jurisdictions,  we  have  seen  its  sources  to  be  custom, 
judicial  construction  and  precedent,  scientific  com- 
mentary, and  legislative  enactment.  As  we  have 
seen,  the  recent  tendency  has  been,  and  will  undoubt- 
edly continue  to  be,  for  the  last  source  to  become 
relatively  more  and  more  important.  At  the  same 
time,  it  is  to  be  remembered,  that  the  other  agen- 
cies will  be  ever  present.  Custom  with  its  slow 
tread  will   render  obsolete  laws  that  have  become 


THE   NATURE   OF   LAW  157 

anachronistic,  and  will  create  new  principles  that 
will  force  their  recognition  upon  the  legislatures  and 
courts.  Scientific  commentaries  and  text-books  will 
continue  their  influence,  and  courts,  too,  of  neces- 
sity, will  never  be  freed  from  the  task  of  producing 
judge-made  law.  All  statutory  law,  from  its  for- 
mal and  definite  statement,  is  rigid  in  character, 
and,  in  its  application  to  changing  conditions,  must 
be  softened  by  the  judge,  if  the  sense  of  justice  be 
not  outraged. 

In  the  development  of  law,  custom  is  the  conserva- 
tive element,  legislative  enactment  the  radical.  The 
task  of  the  true  statesman  is  to  give  to  both  of  these 
elements  their  due  importance.  It  was  the  great 
merit  of  the  work  of  Savigny  that  he  showed  that 
the  task  of  the  legislator  should  be  largely  limited  to 
the  statutory  confirmation  of  principles  that  com- 
mon usage  has  already  established,  rather  than  the 
invention  of  laws  according  to  individual  caprice 
or  judgment.  As  Count  Portalis  has  expressed  it, 
"the  legislature  should  not  invent  law,  but  only 
write  it." 

At  the  same  time,  however,  it  is  undoubtedly  true, 
that  there  should  be,  especially  in  these  modern  times, 
a  more  active  principle  than  this  in  legislation.  The 
opportunities  enjoyed  by  legislatures  should  be  used 
for  the  creation  of  rules  that  custom  cannot  supply. 
The  necessity  often  arises,  also,  for  the  release  of  so- 
ciety from  rules  which  custom  has  itself  created,  but 
which  no  longer  comport  with  the  best  interests  of  all. 
This  is  an  element  that  Savigny  did  not  sufficiently 


158  THE   NATURE   OF   THE   STATE 

recognize.  The  civilization  of  the  East,  and  especially 
of  the  Chinese  Empire,  testifies  to  the  result  of  the 
rigid  reign  of  custom.  Thus,  says  Bluntschli,  in  com- 
menting upon  the  work  of  Savigny:  "While  it  may 
be  true  that  the  present  rests  upon  the  past  and 
cannot  be  entirely  separated  from  it,  yet  it  is  none 
the  less  true  that  the  forms  of  different  ages  are 
variable,  and  out  of  the  depths  of  Man's  nature,  and 
brought  forth  by  the  mutations  in  the  sj)irit  of  the 
ages,  new  forms  are  created.  The  critical  examina- 
tion of  the  past  is  necessary  in  order  to  discover  the 
grounds  upon  which  we  rest,  but  the  consideration  of 
the  future  is  none  the  less  necessary  in  order  to 
determine  whither  we  are  going.  All  law  (Hecht)  is 
truly  of  the  present ;  the  past  is  no  more,  except  in 
so  far  as  its  forces  continue  to  operate  in  the  pres- 
ent ;  and  the  future  is  not  yet,  except  in  so  far  as  it 
is  already  a  condition  in  the  present.  The  present  is 
therefore  a  union  of  the  past  and  future.  It  alone 
is  real.  There  is  something  that  is  often  not  suffi- 
ciently recognized  by  the  historical  school."  ^ 

In  our  day,  however,  the  danger  seems  to  be  that 
our  legislatures  will  go  to  the  other  extreme,  and  give 
expression  to  that  spirit  of  innovation  which,  acting 
without  reference  to  the  past,  or  sufficient  considera- 
tion for  the  future,  seems  to  characterize  popular 
bodies.  The  dictates  of  prudence  and  the  feelings 
of  personal  responsibility  that  restrain  the  monarch 
from  too  hasty  action  are  both  wanting  in  a  large 
representative  assembly.     The  responsibility  in  case 

1  Geschichte  der  neueren  Slaatswissenschaft,  p.  625. 


THE   NATURE   OF   LAW 


159 


of  ill  success,  when  distributed  among  a  large 
number,  is  reduced  to  a  minimum,  and,  at  the 
same  time,  the  feeling  on  the  part  of  such  a  body 
that  it  represents  in  itself  the  entire  nation,  gives 
to  it  a  feeling  of  power  that  is  necessarily  intoxi- 
cating. 


CHAPTER   VIII 

ANALYTICAL   JURISPKUDENCE 

In  the  beginning  of  the  last  chapter  we  spoke  of 
two  ways  in  which  one  may  approach  the  examina- 
tion of  law :  first,  by  a  historical  inquiry  into  the 
manner  in  which  legal  principles  have  arisen ;  and, 
secondly,  by  an  analysis  of  these  rules  as  they  now 
exist,  and  a  classification  of  them  according  to  their 
forms  of  expression,  their  comparative  validity,  and 
their  method  of  ascertainment  and  enforcement.  We 
have  just  considered  the  results  to  be  obtained  from 
the  first  method.  Armed  with  them,  we  are  now 
prepared  for  an  intelligent  and  comprehensive  esti- 
mate of  the  results  to  be  obtained  from  the  second, 
or  analytical  method. 

First  of  all,  it  is  to  be  remarked,  we  are  no  longer 
concerned  with  the  moral  obligation  of  the  individual 
to  yield  obedience  to  the  rules  of  conduct  that  obtain 
in  the  political  community  of  which  he  is  a  mem- 
ber, but  have  to  do  solely  and  simply  with  the  ques- 
tion of  how  those  rules  have  obtained  their  coercive 
force. 

The  ambiguity  which  attaches  to  the  word  *'law" 
makes  it  necessary  to  distinguish  carefully  the  sense 
in  which  the  word  will  be  here  used.  As  opposed 
to  that  use  of  the  word  which  causes  it  to  be  applied 

100 


ANALYTICAL  JURISPRUDENCE  161 

to  the  sequence  of  cause  and  effect  in  the  empiric 
universe,  and  thus  to  indicate  an  inevitable  result 
that  necessarily  follows  from  given  conditions  —  a 
necessity  arising  from  an  undiscoverable  first  cause, 
and  independent  of  the  will  of  mankind  —  it  will  be 
here  used  as  expressing  a  rule  of  human  action  and 
indicating  a  principle  of  conduct  which  shall  gov- 
ern the  actions  of  men  for  the  attainment  of  certain 
ends.  The  characteristic  of  a  law  in  this  sense, 
is  that  it  is  capable  of  being  expressed  as  a  dis- 
tinct proposition  to  rational  beings.  Furthermore, 
it  is  a  command.  That  is,  it  is  not  merely  a  state- 
ment of  advice,  but  an  expression  of  the  will  of  one 
who  has  the  power  to  enforce  it  in  case  of  dis- 
obedience. Thus,  then,  in  a  general  sense,  all  rules 
of  human  conduct  are  defined  as  being  "  propo- 
sitions commanding  the  doing,  or  abstaining  from, 
certain  classes  of  actions ;  disobedience  to  which  is 
followed,  or  is  likely  to  be  followed,  by  some  sort  of 
penalty  or  inconvenience."  ^ 

Continuing  the  examination  of  the  nature  of  laws 
as  thus  stated,  we  have  yet  to  classify  them  accord- 
ing to  the  nature  of  the  one  by  whose  will  they  are 
stated,  and  the  character  of  the  sanction  by  which 
enforced.  According  to  the  character  of  the  law- 
giver they  are  of  two  kinds :  first,  laws  set  by  God 
to  man,  which  may  be  revealed  or  unrevealed ;  and 
second,  laws  set  by  men  to  men.  As  regards  the 
character  of  the  sanction  applied,  they  may  affectj 
either  the  moral  or  physical  side  of  man.  / 

1  Holland,  Elements  of  Jurisprudence,  6tli  ed.  p.  21. 


162  THE    NATURE   OF   THE   STATE 

The  insufficiency  of  the  doctrines  of  Divine  or 
Natural  Laws  has  akeady  been  shown  in  our  discus- 
sion of  the  Contract  and  Divine  Theories.  Divine 
Laws,  as  such,"  are  applicable  only  to  motives  or  inter- 
nal acts,  and  their  sanction  is  a  purely  moral  one. 
In  so  far  as  they  may  be  held  to  control  outward  acts 
they  not  only  need  to  be  humanly  cognized  but  to  be 
enforced  by  physical  or  humanly  determined  means. 
As  such,  they  become  human  rules,  or  rules  set  by 
men  to  men.  The  same  is  true  of  so-called  Natural 
Laws.  Except  as  purely  moral  or  divine  principles, 
the  term  "Natural  Law,"  as  we  have  seen,  has  no 
other  meaning  than  as  referring  to  those  ideal  rules 
of  external  action  that  are  fitted  to  be  enforced  by 
some  human  power,  and  are  only  cognizable  as  such 
by  human  reason. 

As  we  have  previously  shown,  it  was  Hobbes  who 
first  made  distinct  the  difference  between  these  so- 
called  laws  of  nature,  which  necessarily,  in  the  absence 
of  a  general  authority,  can  have  no  other  than  a  moral 
sanction,  and  no  greater  guarantee  of  enforcement 
than  individual  might;  and  civil  laws,  whose  enun- 
ciation and  enforcement  are  by  a  political  superior. 
It  was  this  distinction  thus  made  by  Hobbes  that 
was  subsequently  seized  upon  by  Bentham  and  Austin, 
and  so  developed  as  to  form  the  logical  basis  of 
what  has  since  been  termed  the  English  Analytical 
School  of  Jurisprudence. 

Austin's  definition  of  Law  is  as  follows :  "  Every 
positive  law  or  every  law  simply  and  strictly  so 
called  is  set  directly  or  circuitously  by  a  sovereign 


ANALYTICAL   JURISPRUDENCE  163 

person  or  body,  to  a  member  or  members  of  the 
independent  political  society  wherein  that  person  or 
body  is  sovereign  or  supreme.  Or  (changing  the 
expression)  it  is  set  directly  or  circuitously  by  a 
monarch  or  sovereign  number,  to  a  person  or  per- 
sons in  a  state  of  subjection  to  its  author."  ^ 

The  first  point  to  be  noticed  in  this  Austinian  defi- 
nition of  law  is  that  all  law  is  considered  as  a  com- 
mand of  the  sovereign,  which,  for  present  purposes, 
we  may  consider  as  meaning  the  State. 

It  was  of  course  obvious  to  Austin  that,  as  our  his- 
torical inquiry  has  shown,  the  law  of  a  country  as 
administered  in  its  courts  is  never  by  any  means  to 
be  wholly  found  in  the  formal  expressions  of  the  will 
of  the  State,  but  has  its  source  largely  in  custom. 
That  this  objection  to  his  position  is  only  apparent, 
not  real,  he  explains  in  the  following  way :  "  Now," 
says  he,  "  when  judges  construe  a  custom  into  a  legal 
rule  (or  make  a  rule  not  suggested  by  a  custom)  the 
legal  rule  which  they  establish  is  established  by  the 
sovereign  legislature.  A  subordinate  or  subject  judge 
is  merely  a  minister.  The  portion  of  the  sovereign 
power  which  lies  at  his  disposition  is  merely  dele- 
gated. The  rules  which  he  makes  derive  their  legal 
force  from  authority  given  by  the  State  :  an  authority 
which  the  State  may  confer  expressly,  and  which  it 
commonly  imparts  by  way  of  acquiescence.  For, 
since  the  State  may  reverse  the  rules  which  he 
makes,  and  yet  permits  him  to  enforce  them  by  the 
power  of  the  political  community,  its  sovereign  will 

^  The  Province  of  Jurisprudence  Determined,  ed.  1861,  Lecture  YI. 


164  THE   NATURE   OF   THE   STATE 

that  the  rules  shall  obtain  as  law,  is  clearly  evinced 
by  its  conduct  though  not  by  its  express  declaration. 
.  .  .  Like  other  significations  of  desire,  a  command 
is  express  or  tacit.  If  the  desire  be  signified  by 
words  (written  or  spoken),  the  command  is  express. 
If  the  desire  is  signified  by  conduct  (or  by  any  signs 
of  desire  which  are  not  words)  the  command  is  tacit. 
Now  when  customs  are  turned  into  legal  rules  by 
decisions  of  subject  judges,  the  legal  rules  which 
emerge  from  the  customs  are  tacit  commands  of  the 
sovereign  legislature.  The  State  which  is  able  to 
abolish,  permits  its  members  to  express  them ;  and  it 
therefore  signifies  its  pleasure  by  that  its  voluntary 
acquiescence,  that  they  shall  serve  as  a  law  to  the 
governed." 

Austin  thus  excludes  from  the  domain  of  positive 
law  all  rules  of  conduct  that  look  for  their  sanction 
merely  to  the  pressure  of  public  opinion  and  to  the 
prevailing  codes  of  public  morality.  Not  until  a 
principle  has  been  declared  by  the  legislative  mouth- 
piece of  the  State  or  judicially  accepted  by  the  courts, 
and  the  courts'  rulings  in  turn  acquiesced  in  by  the 
ruling  authorities,  as  evidenced  by  the  enforcement 
thereof,  does  such  a  principle  become  stamped  with 
the  quality  of  law  in  the  Austinian  sense. 

It  is  generally  agreed  that  the  positive  law  of  a 
State  may  be  said  to  be  contained  in  those  rules  that 
are  accepted  by  its  judicial  tribunals.  But  it  is  by  no 
means  equally  admitted  by  all,  that  all  of  these  rules 
may  be  said  to  owe  the^  establishment  to  the  State 
either  directly  or  indirectly,  as  stated  by  Austin  and 


ANALYTICAL   JURISPRUDENCE  1G5 

his  school.  It  is  vigorously  contended  that  the  State 
does  not  enjoy  the  sole  prerogative  of  creator  of 
positive  law,  either  as  acting  through  its  special  leg- 
islative mouthpieces  or  through  its  courts,  but  that  it 
must  share  this  honor  with  the  people.  In  other 
words,  it  is  claimed  that  that  large  body  of  legal 
principles  commonly  called  customary  law  and  ac- 
cepted by  the  courts,  does  not,  by  such  acceptance, 
then,  for  the  first  time,  become  invested  with  a  legal 
character ;  but  that  such  character  has  been  pre- 
viously established  by  the  general  recognition  of  its 
binding  force  by  the  people. 

This,  it  need  not  be  said,  is  a  fundamental  point 
in  any  political  theory,  for  upon  it  depends  the  ques- 
tion not  only  as  to  the  essential  character  of  positive 
law,  but  as  to  the  extent,  and  therefore  the  character, 
of  the  State's  Sovereignty.  The  question  is  whether 
it  is  to  be  admitted  that  rules  of  legally  binding  force 
may  be  created  independently  of  the  State's  action 
and  therefore  in  limitation  of  it,  or  whether  the 
political  Sovereignty  is  to  be  viewed  as  the  sole 
source  whence  all  legal  obligation  springs. 

In  general,  we  may  denominate  as  the  Historical 
School  that  party  of  writers  who  are  opposed  to  the 
Austinian  conception  of  law.  In  England  this  school 
is  headed  by  the  name  of  Sir  Henry  Maine,  and  upon 
the  Continent  by  Savigny  and  Puchta.  In  general, 
American  writers  are  also  of  this  latter  school,  a  fact 
that  is  undoubtedly  owing  to  the  course  of  our  politi- 
cal history.  Resting,  as  we  do,  our  origin  as  an  inde- 
pendent nation  on  a  forcible  separation  from  Eng- 


166  THE  NATURE   OF  THE   STATE 

land,  and  founding  the  justification  for  such  action 
upon  so-called  natural  or  inalienable  rights  of  lib- 
erty, we  have  not  been  disposed  to  see  in  political 
authority  the  sole  source  of  legal  rights,  nor  to  con- 
cede to  its  Sovereignty  such  a  legally  despotic  char- 
acter, as  logically  follows,  as  we  shall  see,  from  the 
Austinian  view. 

It  is,  also,  not  difficult  to  see  why  it  is  that  this 
school,  so  dominant  in  England,  has  exerted  so  little 
influence  in  Germany.  As  Lightwood  shows  in  his 
work,  Tlie  Nature  of  Positive  Law,  not  only  do  the 
Germans,  as  a  rule,  fail  to  make  that  clear  distinction 
between  law  and  morality  that  is  made  by  English 
lawyers,  and  contemplate  the  former  only  as  supple- 
menting and  making  possible  the  latter;  but  also  the 
historical  development  of  their  law  tends  to  make 
the  Austinian  conception  less  apparent.  In  England 
a  strong  central  government  was  early  established. 
In  Germany  this  result  was  not  achieved  until  a  com- 
paratively recent  date.  Hence,  the  inevitable  ten- 
dency in  the  one  country  to  view  law  as  the  product 
of  that  sovereign  power  which  appeared  so  omnipo- 
tent; and  in  the  other,  to  see  in  custom  the  essential 
source  of  law.  This  view  has  been  also  strength- 
ened by  the  characteristic  attitude  of  the  German 
mind  toward  political  authority.  We  refer,  of  course, 
to  the  Teutonic  particularism,  that,  starting  from  a 
postulate  of  individual  liberty,  sees  in  the  State  an 
institution  through  which  personal  rights  are  pro- 
tected and  realized.  Hence  the  tendency  to  discover 
in  the  customs,  that  obviously  owe  their  creation  to 


ANALYTICAL   JURISPRUDENCE  167 

the  people,  the  true  origin  of  law ;  rather  than  to 
discover  their  source  in  the  commands  of  the  State 
through  whose  instrumentality  they  are  enforced. 
"  Positive  Law,"  says  Savigny,  "  springs  from  that 
general  spirit  which  animates  all  the  members  of 
the  Nation,  and  the  unity  of  the  law  is  revealed 
necessarily  to  their  consciences  and  is  by  no  means 
the  effect  of  chance."  ^  ,  The  growth  of  custom  he 
compares  to  that  of  language.  And,  he  continues, 
"  Law  which  lives  in  the  common  consciousness 
of  the  people  is  not  composed  of  abstract  rules.  It 
exists  rather  in  the  actual  perception  of  a  legal 
institute  in  its  organic  connection,  and  the  rule  ap- 
pears in  its  logical  form  so  soon  as  the  need  for  it  is 
felt ;  it  is  then  singled  out  from  this  connection,  and 
is  translated  in  an  artificial  manner."  ^  In  other 
words,  according  to  Savigny,  customary  law  exists  as 
law  independently  of  the  State.  When,  therefore,  it 
is  formally  enunciated  by  the  courts  or  legislature, 
the  function  of  the  State  is  rather  that  of  realizing 
and  enforcing  the  law  than  of  creating  it.  The  State 
thus  appears  as  itself  the  creator  of  law  only  when 
it  establishes  by  statutory  enactment  a  rule  wholly 
or  in  part,  not  founded  upon  a  previously  recognized 
custom. 

While  the  above  comments  and  quotations  from 
Savigny  serve  to  show  w^hat  has  undoubtedly  been 
the  dominant  attitude  of  German  jurists  during  the 
present  century,  it  is  to  be  remarked  that  within  the 

^  System  des  heutigen  romischen  Rechtes,  §  7. 
2  mm,  §  7. 


168  THE   NATURE   OF   THE   STATE 

last  few  years  there  has  been  apparent  a  tendency  to 
change  this,  and  to  turn  to  a  position  much  more 
similar  to  that  of  the  analytical  jurists  of  England. 
Especially  is  this  apparent  in  Ihering's  Zweck  im 
Recht,  and  Lasson's  System  der  Rechts2}hiloso2}hie. 

In  England,  on  the  other  hand,  the  high  au- 
thority of  the  Austinian  School  has  been  considered 
as  greatly  shaken  by  the  historical  method  intro- 
duced into  the  study  of  law  by  Sir  Henry  Maine. 
This  writer  is  supposed  to  have  pointed  out  that 
there  is  evidence  to  show  that  throughout  the  greater 
portion  of  the  world's  history,  law  was  created 
otherwise  than  according  to  the  Austinian  theory ; 
and  therefore  that  if  his  conception  of  the  source  of 
law  be  applicable  at  all,  it  is  applicable  only  to 
highly  developed  States.  The  following  quotation 
from  Maine  sufficiently  indicates  his  position.  Re- 
ferring to  an  Indian  despot,  he  says  :  "  At  first  sight 
there  could  be  no  more  perfect  embodiment  than 
Runjett  Singh  of  sovereignty  as  conceived  by  Austin. 
He  was  absolutely  despotic.  Except  occasionally  on 
his  wild  frontier  he  kept  the  most  perfect  order.  He 
could  have  commanded  anything :  the  smallest  dis- 
obedience to  his  commands  would  have  been  followed 
by  death  or  mutilation,  and  this  was  perfectly  well 
known  to  the  enormous  majority  of  his  subjects. 
Yet  I  doubt  whether  once  in  all  his  life  he  issued  a 
command  which  Austin  would  call  a  law.  ...  He 
had  all  material  of  power  and  he  exercised  it  in 
various  ways.     But  he  never  made  law."  ^ 

^  Early  History  of  Institutions,  p.  380. 


ANALYTICAL   JURISPRUDENCE  169 

It  is  to  be  observed  that  Maine  admits  the  verhal 
truth  of  Austin's  theory,  and  adds :  "  I  do  not  for  a 
moment  assert  that  the  existence  of  such  a  state 
of  political  society  falsifies  Austin's  theory.  The 
maxim  by  which  objections  to  it  are  disposed  of 
is,  as  I  have  so  often  said  before,  that  what  the 
sovereign  permits,  he  commands."  The  position 
which  we  shall  take,  however,  is  that  there  is 
more  than  a  verbal  truth  in  the  thesis  that  all  law, 
as  law,  emanates  from  the  sovereign ;  and  that 
when  a  customary  rule  is  declared  by  a  court  of 
justice  to  be  one  which  the  State  will  enforce,  such 
rule  becomes  specifically  distinct  from  what  it  had 
before  been.  It  might  be  added,  though,  that  the 
phrase  "  what  the  sovereign  permits,  he  commands," 
is  better  expressed  as  "  what  the  sovereign  enforces, 
he  commands." 

Probably  the  strongest  argument  that  has  been 
made  in  America  against  the  Austinian  view  is  that 
contained  in  the  opening  chapters  of  Wharton's 
Commentaries  on  American  Laio.  This  author  writes 
as  follows :  "  By  whom  were  existing  English  stat- 
utes winnowed  in  the  colonies  of  Massachusetts  and 
Pennsylvania,  for  instance,  so  as  to  retain  such  as 
suited  the  temper  and  met  the  wants  of  the  people, 
and  to  set  aside  all  others  ?  This  was  not  done  by 
the  colonial  assemblies  ;  had  such  a  process  of  radi- 
cal revision  been  attempted  by  these  assemblies  it 
would  have  been  promptly  vetoed  by  the  king  in 
council.  It  was  not  done  by  the  British  Parliament, 
though  the   British   Parliament   assumed  to  be  the 


170  THE  NATUKE   OF  THE   STATE 

sole  supreme  legislature  by  whose  laws  these  colonies 
were  controlled.  It  was  done  by  popular  assent  pro- 
duced by  national  conscience  and  national  need.  It 
is  true  that  when  the  colonies  became  independent 
sovereigns  they  passed  laws  by  which  the  process  of 
selection  and  rejection  thus  carried  out  was  approved. 
But  it  was  never  pretended  that  the  process  of  se- 
lection and  rejection  derived  its  authority  from  such 
legislation.  On  the  contrary,  when  the  colonies  be- 
came sovereigns,  what  their  court  said  was,  ^  this 
particular  English  statute  was  never  in  force  in  this 
State ' ;  in  other  words,  the  courts  said,  '  the  law  of 
the  land,  in  this  respect,  was  not  imposed  by  the  sov- 
ereign on  the  people,  but  was  adopted  by  the  people 
and  afterwards  accepted  by  the  sovereign.'  The 
same  may  be  said  of  the  rulings  of  our  courts  as  to 
international  and  interstate  law,  and  the  law  regulat- 
ing Indian  tribes."  ^ 

And  again  he  says,  —  and  this  is  the  strong  point 
made  against  Austin  by  lawyers  qiid.  lawyers, — "Yet 
that  custom  makes  the  law  and  not  law  custom,  is 
shown  by  the  fact  just  noticed,  that  when  a  custom 
is  recognized  by  the  courts  as  existing,  the  recognition 
operates  retrospectively,  the  custom  being  regarded  as 
law  before  it  was  judicially  recognized."^ 

In  considering  now  these  criticisms  that  are  made 
upon  the  Austinian  position  as  to  the  nature  of  law, 
it  is  to  be  observed  that  much  the  greater  part  of 
these  objections  are  in  fact  examples  of  ignorantio 
elenchi,  the  confusion   arising,  as  Holland  correctly 

'  Commentaries  on  American  Law,  §  2.  *  Idem,  §  15,  note. 


ANALYTICAL   JURISPRUDENCE  171 

points  out,  from  the  ambiguous  sense  in  which  the 
term  "source  of  law"  may  be  used.^  Thus  this  ex- 
pression may  be  used  either  to  denote  the  mode  in 
which,  or  the  person  through  whom,  have  been  formu- 
lated those  rules  which  have  acquired  the  force  of 
law ;  or,  to  denote  the  authority  which  gives  them 
that  force. 

Now  so  far  as  it  is  used  in  the  first  sense,  there 
is  no  denial  made  by  the  Analytical  School  that 
custom  is,  in  very  large  measure,  the  source  of  law. 
That  is  to  say,  that  through  this  medium  have 
arisen  the  principles  of  social  conduct  that  have 
been  subsequently  embodied  in  law.  Furthermore, 
it  is  not  asserted  that,  as  an  actual  fact,  the 
exigencies  of  public  life  have  not  at  all  times 
demanded  that  the  sovereign  power  should  found 
the  expression  of  its  will  upon  these  rules.  But 
what  this  school  does  maintain,  is,  that  these  cus- 
tomary rules  do  not  become  law  in  a  strictly  legal, 
or,  as  Austin  would  say,  positive  sense,  until  they 
are  accepted  by  the  political  power  and  enforced 
by  its  might.  Force,  the  power  of  the  State,  is  thus 
made  the  determining  principle.  As  Austin  says, 
"  There  can  be  no  law  without  a  judicial  sanction, 
and  until  custom  has  been  adopted  as  law  by  courts 
of  justice  it  is  always  uncertain  whether  it  will  be 
sustained  by  that  sanction  or  not."^  And,  again, 
"  The  description,  completion,  and  correction  of  posi- 
tive morality  are  as  much  an  end  for  which  political 

1  Elements  of  Jurisprudence,  6th  ed.  p.  49. 
^  Lectures  on  Jurisprudence,  II.  501. 


172  THE   NATUEE   OF   THE   STATE 

government  is  wanted,  as  the  obtaining  by  its  estab- 
lishment a  more  cogent  sanction.  But  the  sovereign 
makes  it  law,  not  by  the  mere  description,  but  by 
the  sanction  with  which  he  clothes  it."  ^ 

Now  it  is  obvious  that  the  objections  that  have 
been  founded  on  the  historical  evidences  quoted  by 
Wharton  and  Maine  are  applicable  solely  to  the 
question  of  the  origination  of  the  principles  em- 
bodied in  the  law,  —  a  question  with  which  the 
Austinians  are  not  concerned.  Thus,  when  Maine 
says  that  the  Indian  despot  never  made  a  law,  he 
can  only  mean  that  he  never  arbitrarily  established  a 
general  rule  of  conduct.  What  he  did  do,  however, 
was  to  enforce  rules  of  conduct  with  the  entire  might 
of  the  State,  and  thereby,  as  the  Analytical  School 
claims,  did  elevate  such  principles  into  legal  rules. 
It  is  no  answer  to  say  that  in  the  case  of  many 
of  the  earlier  monarchies,  they  were  simply  tax- 
collecting  empires,  and  that  there  was  no  attempt, 
or  even  desire,  on  the  part  of  their  rulers  to  inter- 
fere with  the  domestic  rules  that  obtained  in  the 
various  portions  of  their  kingdoms.  The  point  is, 
that  the  very  least  important  of  the  customary 
rules  that  did  obtain  acceptance  in  those  countries 
by  the  lowest  courts  or  judicial  officers,  did  thereby 
obtain  a  sanction  that  was  ultimately  supported  by 
the  entire  strength  of  the  sovereign  political  au- 
thority. For,  in  case  of  resistance  on  the  part  of 
any  one  to  the  decree  of  the  judicial  officer,  founded 
on  the  recognition  of  such  rule,  it  would  be  neces- 

*  Lectures  on  Jurisprudence,  II.  567. 


ANALYTICAL  JURISPRUDENCE  173 

sary  to  call  upon  the  executive  power  to  enforce 
it;  and,  in  case  of  continued  resistance  (if  the  rule 
of  law  were  to  be  maintained),  ultimately  to  bring 
into  operation  the  entire  force  of  the  State.  It  is 
the  great  advantage  of  the  State,  however,  that  so 
overwhelmingly  superior  is  its  strength,  that  in  all 
but  exceptional  cases  its  actual  exercise  is  made 
unnecessary. 

Again,  it  is  no  answer  to  the  assertion  that  the 
State  is  the  sole  creator  of  law,  to  show  that  no 
State  can  maintain  its  control  that  does  not  in 
general  accept  as  its  will  those  principles  of  justice 
and  utility  that  are  evolved  by  the  customary  habit 
of  its  people.  That,  in  other  words,  the  attempt  on 
its  part  to  establish  arbitrary  rules  of  conduct  not 
based  on  the  needs  and  capacities  of  the  people,  as 
evidenced  by  their  customary  habits  of  life,  would 
lead  inevitably  to  revolt  and  revolution.  This  would 
only  show  that,  as  a  principle  of  political  expediency, 
[i.e.  of  caution  and  prudence),  a  general  acceptance 
of  customary  rules  is  necessary. 

Finally,  it  is  not  a  refutation  of  the  position 
which  we  have  been  defending,  to  point  to  the 
fact  that  a  court  of  justice,  in  accepting  a  custom 
as  law,  does  not  declare  that  henceforth  such  prin- 
ciple shall  obtain  as  law,  but  holds  it  to  have  been 
the  law  at  the  time  of  the  accruing  of  the  cause  of 
action  whose  merits  are  then  decided. 

The  position  of  Holland,  who  is  possibly  the  best 
exponent  of  Austin's  system  to-day,  differs  from 
that  of  his  master  upon  this  point,  and   is   an  at- 


174  THE  NATURE  OF  THE  STATE 

tempt,  it  would  seem  to  us,  to  avoid  the  objec- 
tion rather  than  to  answer  it.  Thus,  his  reasoning 
is  as  follows :  "  The  Courts  have,  therefore,  long 
ago  established  as  a  fundamental  principle  of  law, 
subject  of  course  in  each  case  to  many  restrictions 
and  qualifications,  that  in  the  absence  of  a  specific 
rule  of  written  law,  regard  is  to  be  had  in  look- 
ing for  the  rule  which  governs  a  given  set  of 
circumstances,  not  only  to  equity  and  to  previous 
decision,  but  also  to  custom.  Binding  authority 
has  thus  been  conceded  to  custom,  provided  it 
fulfils  certain  requirements,  the  nature  of  which 
has  also  long  since  been  settled,  and  provided  it 
is  not  superseded  by  law  of  a  higher  authority. 
When,  therefore,  a  given  set  of  circumstances  is 
brought  into  Court,  and  the  Court  decides  upon 
them  by  bringing  them  within  the  operation  of  a 
custom,  the  Court  appeals  to  that  custom  as  it 
might  to  any  other  pre-existent  law.  It  does  not 
proprio  motu  then  for  the  first  time  make  that 
custom  a  law;  it  merely  decides  as  a  fact  that 
there  exists  a  legal  custom,  about  which  there 
might  up  to  that  moment  have  been  some  question, 
as  there  might  about  the  interpretation  of  an  Act  of 
Parliament.  It  then  applies  the  custom  to  the  cir- 
cumstances just  as  it  might  have  applied  an  Act  of 
Parliament  to  them.  A  good  custom  or  an  intel- 
ligible Act  of  Parliament  either  exists  or  does  not 
exist  objectively,  before  the  case  comes  into  Court ; 
although  it  is  from  the  decision  of  the  Court  in  the 
particular  case  that  a  subjective  knowledge  is  first 


ANALYTICAL  JURISPRUDENCE  I75 

possible  for  the  people  of  the  existence  or  non-exist- 
ence of  the  alleged  custom,  or  that  this  or  that  is 
the  meaning  of  the  Act  of  Parliament."  ^ 

It  would  certainly  seem  to  us  that  Holland  admits 
the  very  point  against  which  he  contends,  when  he 
says  that  the  court  does  not  for  the  first  time  make  a 
custom  a  law  by  its  adjudication,  but,  "  merely  de- 
cides as  a  fact  that  there  exists  a  legal  custom  about 
which  there  might  up  to  that  moment  have  been 
some  question,  as  there  might  about  the  interpreta- 
tion of  an  Act  of  Parliament."  This  would  cer- 
tainly limit  the  action  of  the  court  to  that  of  the 
interpretating  function.  And,  as  one  of  his  critics 
has  properly  said,  "  To  say  that  customs  are  regarded 
as  laws  by  virtue  of  a  tacit  law  to  that  effect,  is 
simply  to  beg  the  whole  question.  It  is  to  say  that 
custom  is  law  in  virtue  of  custom."  ^ 

As  has  been  indicated,  it  is  maintained  by  Austin 
that  a  custom  becomes  a  law  at  the  time  that  it  is 
applied  by  a  court  and  not  before,  and  this  would 
seem  to  us  the  only  logical  position  to  take.  Let  it 
be  frankly  admitted  that  judicial  legislation  is  ex 
post  facto  legislation.  But  what  if  it  is  ?  What  has 
this  really  to  do  with  the  question  as  to  the  effect  of 
such  decisions  of  the  courts  upon  custom  ?  It  is,  to 
be  sure,  a  general  principle  of  legislation  that  laws 
should  not  be  retroactive  in  their  effect,  but  this  is  a 
principle  dictated  by  general  considerations  of  justice, 
and  not  of  necessity.     There  is  no  more  inherent  dif- 

^  Elements  of  Jurisprudence,  6th  ed.  pp.  54,  55. 

^  Professor  John  Dewey  in  Pol.  ScL  Quar.  March,  1894,  p.  47. 


176  THE   NATURE   OF   THE   STATE 

ficulty  in  the  State  establishing  retroactive  law,  than 
there  is  in  its  creating  law  that  shall  be  of  only 
prospective  application.  That  this  is  the  case,  is 
seen  in  the  necessity  of  explicitly  providing  in  our 
own  written  constitutions  that  neither  Congress  nor 
the  State  legislatures  shall  pass  ex  post  facto  enact- 
ments. In  the  case  of  legislatures  not  thus  arbitra- 
rily limited,  as,  for  example,  the  British  Parliament, 
no  judge  would  hold  a  retroactive  act  invalid  if 
passed  according  to  due  forms  and  procedure.  Laws 
establislied  by  means  of  formal  statutory  enactments, 
are,  as  a  rule,  created  without  reference  to  particular 
cases,  and  therefore  injustice  would  necessarily  result 
had  such  enactments  a  retroactive  character.  When, 
however,  we  come  to  judicial  legislation,  we  come  to 
a  field  where  this  ex  post  facto  principle  is  not  recog- 
nized,—  not  recognized  because  from  the  very  nature 
of  the  case  no  necessity  of  justice  demands  it.  By 
the  recognition  of  a  custom  as  law,  no  arbitrary  or 
novel  doctrines  of  right  are  established  by  the  court. 
Principles  only  are  declared  as  enforcible  that  have 
already  obtained  in  practice  among  the  people. 
Hence  no  possible  injustice  is  done  by  declaring 
such  customs  then  and  there  to  be  laws,  and  at  the 
same  time  applying  them  to  the  causes  of  action 
that  have  previously  accrued.  There  is  no  need  to 
predicate  a  tacit  law  to  the  effect  that  such  cus- 
toms shall  be  law,  but  simply  to  admit  that  judicial 
legislation  is  ex  post  facto  legislation,  and  to  defend  it 
as  such ;  in  fine,  to  make  the  action  of  the  court  not 
simply  interpretative,  but  actually  creative  of  law. 


ANALYTICAL  JURISPRUDENCE  177 

Summing  up,  then,  this  entire  subject,  we  are 
justified  in  defining  law  in  the  strict  positive  or  civic 
sense,  as  those  rules  of  conduct  that  control  courts 
of  justice  in  the  exercise  of  their  jurisdictions.  As 
distinguished  from  all  other  rules  of  conduct  that 
obtain  more  or  less  general  recognition  in  a  com- 
munity of  men,  they  are  such  as  have  for  their 
ultimate  enforcement  the  entire  power  of  the  State. 
The  scientific  value  of  such  a  definite  connotation  of 
the  term  "  law  "  is  obviously  great.  By  it  alone  is 
rendered  possible  a  definite  and  exact  knowledge  of 
the  facts  to  which  this  department  of  knowledge 
relates,  and  a  sound  basis  afforded  upon  which  to 
rest  the  conception  of  the  Sovereignty  of  the  State. ^ 

A  little  reflection  shows  how  indefinite  would  be 
the  term  "  law  "  if  applicable  to  custom  and  civil 
rules  alike.  So  long  as  customary  rules  retain  their 
purely  customary  form,  that  which  gives  to  them 
force  and  efficiency  for  regulation  is  not  the  threat 
of  coercion,  or  the  imposition  of  penalties  by  a 
superior  power  in  case  of  their  violation.  Their 
force  is  solely  derived  from  the  pressure  of  public 
opinion,  of  religious  sanction,  of  individual  sense 
of    right,   or    the    possibility   of    personal    retalia- 

1  Regarding  the  value  of  Austin's  conception  of  law  and  Sover- 
eignty, Mr.  Justice  Markby  {Elements  of  Law,  2d  ed.  p.  4)  speaks  as 
follows :  "  Austin,  by  establishing  the  distinction  between  law  and 
morals,  not  only  laid  the  foundation  for  a  science  of  law,  but  cleared 
the  conception  of  law  and  of  sovereignty  of  a  number  of  pernicious 
consequences  to  which,  in  the  hands  of  his  predecessors,  it  had  been 
supposed  to  lead.  Laws,  as  Austin  has  shown,  must  be  legally  bind- 
ing; and  yet  a  law  may  be  unjust.  Resistance  to  authority  cannot 
be  a  legal  right,  and  yet  it  may  be  a  virtue." 


N 


178  THE  NATURE  OF  THE  STATE 

tion  on  the  part  of  those  persons  injured  by  such 
violation.  Such  influences  as  these  are  of  the  most 
variable  character,  and  personal  in  the  highest  degree. 
Their  force  depends  almost  wholly  upon  the  subjec- 
tive condition  of  the  individual,  upon  his  own  pecul- 
iar temperament  of  mind,  his  sense  of  justice,  his 
religious  reverence,  his  regard  for  the  traditional,  his 
power  of  self-restraint,  and  his  sensitiveness  to  the 
good-will  of  the  community.  Such  principles,  then, 
possess  no  force  of  their  own,  no  compelling  power ; 
obedience  to  them  is  secured  only  by  the  voluntary 
consent  of  the  individual,  such  consent  being  based 
upon  the  dictates  of  reason,  expediency,  and  right 
that  dwell  within  his  own  breast. 

When,  therefore,  it  is  asked  to  so  broaden  the  con- 
notation of  the  term  "  law  "as  to  include  such  ele- 
ments as  these,  we  answer  that  logical  exactness  and 
scientific  accuracy  demand  that  a  more  definite  mean- 
ing be  given  to  this  word.  Definitions  are  valuable 
only  in  so  far  as  they  give  a  precision  of  meaning  to 
words  and  expressions.  Their  sole  utility  consists 
in  the  demarkation  of  a  definite  field  within  which 
the  word  or  phrase  is  applicable,  and  it  will  be 
apparent  that  to  include  within  the  meaning  of  law 
elements  that  differ  so  widely  as  the  purely  custom- 
ary principles  of  which  we  have  been  speaking,  and 
the  rigid  rules  of  conduct,  formally  enunciated  by 
the  State  and  enforced  by  its  sovereign  right,  is  to 
create  a  signification  for  the  word  that  cannot  be 
sufficiently  definite  to  serve  as  a  basis  upon  which  to 
found  a  formal  science  of  jurisprudence  and  politics. 


ANALYTICAL   JURISPRUDENCE  I79 

What  decisive  and  universally  applicable  definition 
shall  we  give  to  law,  if  custom  is  to  share  with  the 
State  the  power  of  its  creation  ?  When  shall  we 
know  at  any  one  time  what  is  and  what  is  not  law  ? 
What  but  confusion  must  necessarily  result  from 
conceiving  two  co-ordinate  law-making  authorities, 
each  having  the  right  to  create  law  independently  of 
the  other,  or  to  abrogate  and  overrule  each  other's 
creations  ? 

In  conclusion  of  this  subject,  the  reader  will  see 
that  whereas  Austin  laid  the  greatest  stress  upon  the 
determinateness  of  the  sovereign,  because  only  a 
determinate  body  of  persons  is  able  to  express  a  cor- 
porate demand,  or,  as  he  expresses  it,  "  is  capable  as 
a  body  of  positive  or  negative  deportment ;  "  ^  we,  as 
will  subsequently  appear,^  insist  on  the  distinction 
between  State  action  and  mere  social  or  revolu- 
tionary deeds.  That  is  to  say,  we  emphasize  the 
point  that  sovereign  or  political  action  may  only  be 
had  by  regularly  constituted  governmental  organs. 
The  deduction  from  this,  however,  as  to  the  location 
of  Sovereignty  being  necessarily  in  a  determinate 
body,  agrees  with  Austin.  Thus  when  Austin  says 
that  the  essential  difference  between  a  customary 
rule  and  a  positive  law  is  that  the  former  "  is  not 
a  command  issued  expressly  or  tacitly,  but  is  merely 
an  opinion  or  sentiment  relating  to  conduct  of  a 
kind  which  is  held  or  felt  by  an  uncertain  body  or 
by  an  indeterminate  party,"  he  is  impressed  with  the 

^  Province  of  Jurisprudence  Determined,  ed.  1861,  p.  135. 

2  Chapter  ou  "  Location  of  Sovereignty  in  the  Body  Politic." 


180  THE   NATURE   OF  THE   STATE 

practical  impossibility  of  such  an  indeterminate  body, 
as  that  whence  Public  Opinion  springs,  giving  voice 
to  a  corporate  command.  We,  on  the  other  hand, 
though  agreeing  in  the  result,  lay  weight  upon  the 
logical  impossibility  of  harmonizing  such  a  popular 
function  with  the  sovereign  nature  of  the  State. 

In  our  next  chapter  we  shall  see  what  deductions 
regarding  the  nature  of  the  State's  Sovereignty  are 
to  be  drawn  from  our  conception  of  law  as  wholly 
a  product  of  the  State's  will.  In  connection  with 
this  we  shall  also  consider  the  legal  or  non-legal 
character  of  constitutional  and  so-called  inter- 
national law. 


CHAPTER   IX 

THE    POWER    OF    THE    STATE:    SOVEREIGNTY 

The  result  of  the  preceding  chapters  has  been  to 
show  that  there  are  in  the  individual  no  so-called  /  >^ 
innate  or  "natural  rights,"  that  is,  such  rights  as  I 
exist  independently  of  the  State  and  beyond  its  con- 
trol.  In  so  far  as  the  individual  has  claims  upon  his 
fellows  to  a  non-interference  upon  their  part  with  the 
free  exercise  of  certain  outward  acts,  such  claims 
have  no  legal  force  except  as  recognized  and  enforced 
by  the  political  power.  Just  as  the  existence  of  the 
State  is  not  due  to  the  will  of  the  individual,  so  like- 
wise is  the  validity  of  none  of  the  State's  commands 
dependent  upon  their  consent.  When  Blackstone 
says  that,  "  the  law  of  nature  being  coeval  with 
mankind,  and  dictated  by  God  Himself,  is  of  course 
superior  in  obligation  to  any  other,"  and  that,  •'  it  is 
binding  over  all  the  globe  in  all  countries  and  at 
all  times ;  no  human  laws  are  of  any  validity  if 
contrary  to  this;  and  such  of  them  as  are  valid 
derive  all  their  force  and  all  their  authority,  medi- 
ately or  immediately  from  this  original,"^  he  is 
asserting  what  we  have  seen  to  be  incorrect. 

If,  then,  the  only  rules  that  possess  legal  validity 
are  such  as  have  received  the  sanction  of  the  State, 

^  Commentaries,  Introduction. 
181 


182  THE   NATURE   OF   THE   STATE 

it  follows  as  a  logical  deduction,  that,  since  no  one 
can  be  bound  by  one's  own  will,  the  sovereign  politi- 
cal power  must  necessarily  be  incapable  of  legal 
limitation. 

"Now  it  follows  from  the  essential  difference  of 
a  positive  law,"  says  Austin,  "and  from  the  nature 
of  sovereignty  and  independent  political  society, 
that  the  power  of  a  monarch  properly  so  called,  or 
the  power  of  a  sovereign  number  in  its  collegiate 
and  sovereign  capacity,  is  incapable  of  legal  lim- 
itation. A  monarch  or  a  sovereign  number  bound 
by  a  legal  duty  were  subject  to  a  higher  or  superior 
sovereign ;  that  is  to  say,  a  monarch  or  a  sovereign 
number  boimd  by  a  legal  duty  were  sovereign  and 
not  sovereign.  Supreme  power  limited  by  positive 
law  is  a  flat  contradiction  in  terms. 

"  Nor  would  a  political  society  escape  from  legal 
despotism,  although  the  power  of  the  sovereign  were 
bound  by  legal  restraints.  The  power  of  the  supe- 
rior sovereign  imposing  the  restraints,  or  the  power 
of  some  other  sovereign  superior  to  that  superior, 
would  still  be  absolutely  free  from  the  fetters  of 
positive  law.  For,  unless  the  imagined  restraints 
were  ultimately  imposed  by  a  sovereign  not  in  a 
state  of  subjection  to  a  higher  or  superior  sovereign, 
a  series  of  sovereigns  ascending  to  infinity  would 
govern  the  imagined  community,  which  is  impossible 
and  absurd."^ 

That  this  reasoning  follows  as  a  logical  necessity 
from  our  definition  of  law,  is  without  question.     It 

1  Province  of  Jurisprudence  Determined,  ed.  18G1,  p.  225. 


THE   POWER   OF  THE   STATE:    SOVEREIGNTY         183 

is  to  be  remembered,  however,  that  by  the  term 
"sovereign  power,"  we  refer  to  the  highest  power 
of  the  State  without  reference  to  the  manner  in 
which  this  power  is  exercised  or  in  whose  hands  it 
rests.  When  we  come  to  consider  the  determinate- 
ness  with  which  the  sovereign  power  may  be  located, 
we  shall  find  it  necessary  to  differ  somewhat  from 
Austin. 

In  every  politically  organized  community,  then, 
there  exists  a  public  authority  to  which,  from  the 
legal  standpoint,  all  interests  are  potentially  subject, 
and  therefore  liable  to  regulation  and  control  by  the 
State  when  this  ruling  power  decides  them  to  be 
of  public  interest. 

It  is  true  that  there  are,  and  have  been  since  the 
earliest  times,  certain  subjects  that  it  has  seemed 
just  and  proper  should  be  left  to  the  free  exercise 
of  the  individual,  and  it  does  not  seem  reasonable  to 
expect  that  the  time  will  ever  come  when  this  opin- 
ion as  to  many  of  these  subjects  will  be  changed. 
But  this  is  by  no  means  the  same  thing  as  saying 
that  these  subjects  constitute  a  domain  that  can 
never  be  entered  by  the  State.  The  present  domain 
of  individual  liberty  is  one  that,  according  to  present 
standards  of  politics,  the  Government  is  not  allowed 
to  enter.  From  the  power  of  the  State,  however,  it 
cannot  be  shielded,  and,  as  regards  it,  its  boundary 
line  will  ever  depend  upon  political  expediency.  As 
Professor  Burgess  says  in  his  recent  work,  "  The  in- 
dividual is  defended  in  this  sphere  against  the  Gov- 
ernment by  the  power  {i.e.  the  State)  that  makes  and 


184  THE  NATURE   OE  THE   STATE 

maintains  and  can  destroy  the  Government ;  and 
by  that  same  power,  through  the  Government,  against 
encroachments  from  any  other  quarter.  Against 
that  power  itself,  however,  he   has  no    defence."  ^ 

Our  inquiries,  as  thus  far  pursued,  have  led  up  to, 
and  in  great  degree  indicated  the  nature  of  what 
is  termed  the  Sovereignty  of  the  State.  It  here 
remains  to  determine,  more  particularly,  the  conno- 
tation of  the  term,  and  to  make  apjDlication  of  the 
principles  that  we  shall  obtain,  to  different  phases 
of  political  life.  Thereby  we  shall  ascertain  not  only 
the  political  and  juristic  character  of  these  types, 
but  demonstrate  the  correctness  of  our  results  by 
a  practical  application  of  them.  Especially  impor- 
tant in  this  latter  connection  will  be  the  examina- 
tion of  the  phenomena  presented  by  the  union  of 
the  States,  to  which  subject  we  shall  devote  a  sep- 
arate chapter. 

Distinct,  however,  from  the  determination  of  the 
nature  of  the  sovereign  power,  is  the  question  of 
its  location  in  the  body  politic,  —  the  ascertain- 
ment of  the  person  or  persons  in  whose  hands  its 
exercise  ultimately  rests. 

Our  subject  will  thus  be  divided  into  two  parts ; 
the  first  dealing  with  the  nature  of  Sovereignty ; 
and  the  second  considering  the  question  of  its 
location.  First,  then,  as  to  the  nature  of  Sov- 
ereignty. 

Development  of  the  Theory  of  Sovereignty.  —  In 
beginning  the  examination  of  this  subject  we  come 

^  Political  Science  and  Constitutional  Law,  Vol.  I.  p.  176, 


THE  POWER   OF   THE   STATE:    SOVEREIGNTY         185 

to  what  is  undoubtedly  the  most  important  topic 
to  be  discussed  in  political  science.  As  descriptive 
of  the  highest  power  of  the  State,  Sovereignty  is 
the  vital  principle  in  the  life  of  the  State.  The 
validity  of  all  law  is  dependent  upon  it,  and  all 
international  relations  are  determined  by  it.  The 
theoretical  basis  upon  which  rested  the  conflicting 
claims  of  the  parties  to  the  greatest  war  of  this 
century,  sprang  from  differing  views  regarding  the 
nature  of  Sovereignty,  its  divisibility,  and  the  tests 
by  which  its  presence  is  to  be  recognized. 

In  a  general  way  it  is  convenient  to  say  that 
Sovereignty  is  that  term  which  denotes  the  highest 
power  of  the  State,  and  that  that  person  or  number 
of  persons,  who  possesses  or  possess  this  power,  is  or 
are  sovereign.  Such  a  definition  as  this,  however, 
is  of  such  a  general  nature  as  to  be  scarcely  more 
than  an  explicative  proposition.  It  is  safe  to  say 
that  there  exists  no  other  term  in  political  science, 
regarding  whose  signification  there  exists  such  con- 
fusion and  contradiction  of  thought,  and  in  regard 
to  which  such  an  amount  of  dogmatism  has  been 
preached.  What  the  term  "  Value  "  is  to  the  science 
of  political  economy,  the  term  "  Sovereignty  "  is  to 
political  science. 

It  was  not  until  the  third  quarter  of  the  six- 
teenth century  that  we  find  for  the  first  time  defi- 
nitely stated  the  doctrine  that  Sovereignty  is  the 
essential  element  of  the  State. 

Bodin  defined  the  State,  which  he  termed  the  Ke- 
public,  as   follows  :    ''  EepuUique  est   un   droit  gou- 


186  THE   NATURE   OF  THE   STATE 

vernement  de  plusieiirs  mesnages  et  de  ce  qui  leur  est 
coTYimun  avec  puissance  soicveraine."  -^ 

The  sovereign  power  itself  he  defined  as  the 
^'puissance  ahsolue  et  peipetuelle  d'lme  repuhlique," 
or,  in  Latin,  as  the  "  summa  in  elves  ac  subditos  legi- 
husque  soluta  potestasT  ^  This  power,  itself  above  the 
law,  he  thus  makes  the  all-powerful  force,  by  the 
possession  of  which  the  unity  of  the  State  is  secured, 
and  its  existence  as  an  independent  body  politic 
maintained.  Nor  is  this  power  limited  in  point  of 
time.  He  says :  "  Majestas  vero  nee  a  majore  potes- 
tate  nee  legihus  idlis  nee  tempore  definitur^  ^  In  its 
sovereign  character,  the  State  appears,  according  to 
Bodin,  in  a  double  aspect.  From  within,  it  appears 
as  that  force  from  which  all  other  political  powers 
d.erive  their  validity,  and  in  which  they  may  be,  if 
necessary,  again  absorbed.  As  objects  of  this  force 
the  citizens  are  termed  subjects  (suhditos).  Out- 
wardly, in  its  relation  with  other  powers,  the  State 
appears  as  independent  and  free  from  external  legal 
compulsion  of  any  sort  whatever.  The  logical  re- 
sult of  this  position  was,  of  course,  to  render  the 
conception  of  Sovereignty  necessarily  territorial  in 
character,  that  is,  as  exercisible  over  a  definite 
portion  of  the  world's  surface. 


1  De  la  RdpuUique,  T.  1.  Upon  the  significance  of  Bodin's  work, 
see  especially  E.  Ilancke,  Bodin,  Eine  Studie  ilher  den  Begriffder  Souve- 
rainetdt,  and  Baudrillart,  Jenn  Bodin  et  Son  Tcmjis. 

2  Idem,  I.  8. 

*  Idem.  Bodin  published  his  work  in  both  French  and  Latin.  The 
Latin  version,  however,  is  rather  a  revision  than  a  translation  of  the 
French,  and  as  such  is  superior  to  it. 


THE  POWER  OF  THE  STATE:   SOVEREIGNTY         187 

Finally,  Bodin  declared  Sovereignty  to  be  indivis- 
ible, and  hence  its  exercise  to  be  distinguished  from 
its  ultimate  possession. 

These  theses,  Bodin  not  only  definitely  stated,  but 
followed  out  to  many  of  their  logical  conclusions. 
Thus,  viewing  the  State  in  its  internal  or  domestic 
aspect,  he  was  led  to  the  negation  of  so-called 
limited  monarchies,  and  to  a  denial  of  the  possibility 
of  conclusively  binding  constitutional  laws  in  gen- 
eral. Viewed  outwardly,  he  made  application  of 
his  doctrine  of  Sovereignty  in  the  interpretation  of 
the  relations  between  vassal  States,  States  paying 
tribute  to  others,  etc. 

The  epoch-making  character  of  Bodin's  work  is 
seen  when  we  consider  the  conceptions  that  had 
prevailed  prior  to  his  time.  On  the  one  hand,  the 
old  idea  of  the  universality  of  the  Roman  Empire, 
and  the  alleged  supremacy  of  the  Church  in  mat- 
ters temporal,  had  rendered  impossible  the  idea  of 
Sovereignty  as  including  complete  State  independ- 
ence ;  while,  on  the  other,  the  Feudal  System,  together 
with  the  undisputed  acceptance  of  the  doctrines  of 
Natural  Law,  made  equally  impossible  the  idea  of 
the  State's  power  over  its  own  territory  as  indivisible 
and  beyond  all  legal  limitation. 

The  Middle  Ages  had  been  essentially  uncivic. 
From  the  ruins  of  the  Roman  Empire  arose  the 
Feudal  S^'stem,  and  for  many  years  no  developed 
types  of  civic  life  were  to  be  found  in  Europe.  For 
centuries  society  relapsed  into  earlier  and  less  de- 
veloped  forms   of   political   life.     Arts   and   letters 


188  THE   NATURE   OF  THE  STATE 

were  in  large  measure  forgotten.  Greek  literature 
and  language  became  largely  unknown,  and  even  the 
written  monuments  of  the  Roman  Law  were  prac- 
tically lost,  only  to  be  rediscovered,  or  rather  re- 
introduced as  a  subject  of  study,  in  the  twelfth 
century.  No  such  thing  as  a  developed  State  in  a 
modern  sense  was  known.  The  Feudal  State  was 
scarcely  more  than  a  loose  bundle  of  separated 
groups  of  men  without  common  aim  or  organization 
—  scarcely  more  than  an  aggregation  of  individuals, 
and  of  almost  detached  groups  of  individuals.  As 
Pollock  says  in  his  History  of  Politics :  "  The  Medi- 
aeval system  of  Europe  was  not  a  system  of  States 
m  our  sense  or  in  the  Greek  sense.  It  was  a  col- 
lection of  groups  held  together  in  the  first  instance 
by  ties  of  personal  dependence  and  allegiance,  and 
connected  among  themselves  by  personal  relations 
of  the  same  kind  on  a  magnified  scale.  Lordship 
and  homage  from  the  Emperor  down  to  the  humblest 
feudal  tenant,  were  the  links  in  a  chain  of  steel 
which  saved  the  world  from  being  dissolved  into  a 
chaos  of  jarring  fragments.  .  .  .  The  old  unity  of 
the  clan  had  disappeared,  and  it  was  only  gradually 
and  slowly,  as  kingdoms  were  consolidated  by  strong 
rulers,  that  the  newer  unity  of  the  nation  took  its 
place." 

Gradually,  however,  the  centripetal  forces  over- 
came the  centrifugal.  By  conquest,  by  inheritance, 
by  alliance,  by  marriage,  by  the  weakening  of  the 
feudal  lords  during  the  crusades  and  by  their  own 
intestine  wars,  powerful  monarchies  arose,  the  rulers 


THE   POWER   OF   THE   STATE:    SOVEREIGNTY  189 

of  which  arrogated  to  themselves  a  supremacy  over 
all  within  their  realm.  The  growth  of  monarchy 
was  also  fictitiously  assisted  by  the  old  traditions  of 
the  Roman  Empire,  and  by  the  legal  doctrines  of  ab- 
solutism laid  down  in  the  civil  law,  which,  as  said, 
had  been  again  brought  into  use  in  the  twelfth 
century,  and  had  become  the  foundation  of  the  legal 
systems  of  all  the  European  nations.  Thus,  by  de- 
grees, the  Germans,  in  their  civic  organization,  passed 
from  the  village  and  tribe  to  the  nation,  without 
passing  through  the  intermediate  city  type  which 
had  characterized  Greece  and  early  Italy. 

Thus  it  was  not  until  the  rise  of  the  monarchy  of 
France,  and  later  of  the  other  European  nations,  that 
there  was  presented  a  political  type  requiring  for  its 
explanation  and  theoretical  justification  the  enuncia- 
tion of  a  theory  such  as  that  of  Bodin,  according  to 
which  Sovereignty  was  indicated  as  a  power  not  itself 
subject  to  the  law,  but  as  supreme  over  the  people 
and  as  necessary  to  the  State  for  the  maintenance  of 
its  national  and  independent  existence. 

The  manner  in  which  the  conception  of  Sovereignty 
varied  as  political  conditions  varied,  may  be  shown 
by  quoting  from  the  summary  of  Sir  Henry  Maine 
upon  this  point.^ 

"  It  is  a  consideration  well  worthy  to  be  kept  in 
view,"  says  he,  "that  during  a  large  part  of  what 
we  usuall}^  term  modern  history  no  such  conception 
was  entertained  as  that  of  '  territorial  sovereignty' 
Sovereignty  was  not  associated  with  dominion  over 

'  Ancient  Law,  pp.  99  et  seq. 


190  THE  NATURE   OF  THE   STATE 

a  portion  or  subdivision  of  the  earth.  The  world 
had  lain  for  so  many  centuries  under  the  shadow  of 
Imperial  Rome  as  to  have  forgotten  that  distribution 
of  the  vast  spaces  comprised  in  the  empire  which 
had  once  j^arcelled  them  out  into  a  number  of  inde- 
pendent commonwealths,  claiming  immunity  from 
extrinsic  interference,  and  pretending  to  equality  of 
national  rio;hts.  After  the  subsidence  of  the  barba- 
rian  irruptions,  the  notion  of  sovereignty  that  pre- 
vailed seems  to  have  been  twofold.  On  the  one 
hand  it  assumed  the  form  of  what  may  be  called 
'■  ^n6e-sovereignty.'  The  Franks,  the  Burgundians, 
the  Vandals,  the  Lombards,  and  Visigoths  were 
masters,  of  course,  of  the  territories  which  they 
occupied,  and  to  which  some  of  them  had  given  a 
geographical  appellation ;  and  they  based  no  claim 
of  right  upon  the  fact  of  territorial  possession,  and 
indeed  attached  no  importance  to  it  whatever.  .  .  . 
The  King  of  a  whole  tribe  was  King  of  his  people, 
not  of  his  people's  lands.  The  alternative  to  this 
peculiar  notion  of  sovereignty  appears  to  have  been 
—  and  this  is  the  important  point  —  the  idea  of 
universal  dominion.  ,   .  . 

"Territorial  sovereignty  —  the  view  which  con- 
nects sovereignty  with  the  possession  of  a  limited 
portion  of  the  earth's  surface  —  was  distinctly  an 
offshoot,  though  a  tardy  one,  of  feudalism.  This 
might  have  been  expected  a  priori,  for  it  was  feu- 
dalism which  for  the  first  time  linked  personal  duties, 
and  l:)y  consequence  personal  rights,  to  the  owner- 
ship of  land." 


THE  POWER  OF  THE   STATE:   SOVEREIGNTY         191 

Thus  we  find  througliout  feudal  times,  the  "  suze- 
rain" or  "sovereign"  considered  as  the  lord  para- 
mount of  a  certain  territory,  governing  all  who  held 
land  under  him.  When,  by  the  growth  of  centralized 
government  and  the  decay  of  the  power  of  the  feudal 
nobility,  the  intermediate  links  between  the  common 
people  and  their  chief  rulers  were  removed,  the  result 
was  to  leave  such  rulers  as  sole  sovereigns  and  the 
people  generally  in  a  state  of  subjection  to  them. 

When,  at  a  later  date,  the  representative  character 
of  all  rulership  gradually  gained  ground,  the  attri- 
bute of  Sovereignty  naturally  came  to  be  applied  to 
the  State  as  a  political  entit}^,  and  no  longer  con- 
sidered as  a  personal  right  of  rulership  based  on  ter- 
ritorial possession.  The  change  in  this  conception  is 
indicated  by  the  change  of  title  of  the  French  King 
after  the  Revolution  from  that  of  Roi  de  France  to  that 
of  Boi  des  fran^ais,  thus  showing  the  realm  of  France 
was  no  longer  considered  as  a  patrimonium  regis. 

Sir  Henry  Maine  in  his  Ancient  Laio  further 
points  out  the  influence  of  international  law,  as 
founded  by  Grotius  upon  so-called  natural  law,  in 
promoting  the  modern  conception  of  Sovereignty. 
According  to  the  postulates  of  this  newly  developing 
system  of  international  rights,  it  was  claimed:  (1) 
that  there  was  a  determinate  law  of  nature  binding 
upon  individual  States  in  their  relations  to  one 
another;  (2)  that  the  universal  Sovereignty  of  the 
Roman  Empire  which  so  long  had  been  vaguely  held, 
should  be  replaced  by  a  conception  of  Sovereignty 
that  would  associate  it  with  each  of  the  independent 


192  THE   NATURE  OF  THE   STATE 

States  of  Europe;  (3)  that  there  is  a  theoretical 
equality  of  State  irrespective  of  age,  size,  or  military 
power ;  and  (4)  that  as  between  themselves  the 
various  European  sovereign  rulers  are  to  be  deemed 
not  paramount  but  absolute  owners  of  the  State's 
territory.  By  this  last  there  is  not  meant  a  return 
to  the  old  idea  of  2^<^irit'>^onium  regis,  but  that  in 
States'  transactions  with  each  other  this  theoreti- 
cal ownership  should  be  predicated  in  order  that 
States  may  deal  with  each  other  as  individuals,  or 
rather  as  persons. 

Return ina;  now  from  this  historical  excursion  into 
the  development  of  the  concept  "Sovereignty,"  we 
direct  our  attention  to  a  consideration  of  its  nature. 

The  Nature  of  Sovereignty. —  That  which  first  im- 
presses one  in  a  consideration  of  the  attributes  of 
the  State,  is  its  possession  of  omnipotent  rulership 
over  all  matters  that  arise  between  itself  and  the  indi- 
viduals of  which  it  is  composed,  and  between  the 
individuals  themselves.  The  State  is  the  all-power- 
ful ruling  organization  of  a  People.  Through  its 
instrumentality  alone,  du^ectly  or  indirectly,  are 
finally  determined  what  shall  be  the  rules  of  conduct 
that  shall  obtain  in  the  regulation  of  all  interests 
that  arise  from  the  social  and  political  life  of  its 
citizens.  Its  authority  is  superior  to  all  other 
humanly  established  authorities;  and  all  political 
powers  exercised  by  other  individuals  or  bodies  of 
individuals  are  ultimately  derived  from  it.  It  alone 
has  the  power  of  expressing  a  command,  or  of  deter- 


THE   rOWER   OF  THE   STATE:   SOVEREIGNTY  193 

mining  the  validity  of  an  existing  rule  witli  such 
absolute  authority  that  no  recourse  is  admitted  to 
another  power,  either  in  search  for  the  authority 
upon  which  such  order  or  command  is  based,  or  for 
the  ultimate  determination  of  the  wisdom  or  moral 
propriety  of  the  actions  so  ordered.  The  State  is 
thus  supreme  not  only  as  giving  the  ultimate  validity  |  v^ 
to  all  law,  Ixit  as  itself  determining  the  scope  of  its 
own  poivers,  and  itself  deciding  what  interests  shall 
be  subjected  to  its  regulation.  In  these  particulars 
the  State  is  distinguished  from  all  other  persons  and 
public  bodies.  In  contradistinction  to  the  latter,  it 
sets  to  itself  its  own  rights,  and  the  limits  of  its  own 
authority.  As  Jellinek  puts  it  in  his  work  Gesetz 
und  Yerordnung,  "The  rights  and  duties  of  indi- 
viduals receive  their  potency  and  authority,  from 
grounds  set  forth  in  objective  law.  The  State  finds 
the  ground  for  its  own  rights  and  duties  in  itself."  ^ 
Or,  as  he  expresses  it  in  another  work,  "  Obligation 
through  its  own  will,  is  the  legal  characteristic  of 
the  State."  2 

To  much  the  same  effect  is  the  definition  of  Gareis  : 
"The  ruling  State  {Gemeinivesen)  can  declare  as  its 
interest,  and  establish  as  a  matter  of  law  (Rcchtsgut) 
whatever  interest  it  wills,  and  can  apply  whatever 
means  it  sees  fit  for  the  satisfaction  of  that  interest 
—  this  is  Sovereignty,  an  essential  characteristic  of 
the  State  as  a  ruling  public  body."^ 

1  p.  196. 

2  Die  Lehre  von  den  StaatenverUndungen,  p.  34. 
8  Allgemeines  Staatsrecht,  p.  29. 


194  THE  NATURE   OF  THE   STATE 

Brie  makes  the  State's  "universality  of  compe- 
tence" [AUseitigJceit  der  ZustdndigJceit)  its  essential 
characteristic,  and  the  one  attribute  by  the  pos- 
session of  which  the  State  is  distinguished  from  all 
other  public  organizations.^  But,  as  Jellinek  cor- 
rectly points  out.  Sovereignty  and  Allseitigkeit  der 
■ZicstdndigJceit  are  related  to  each  other  as  cause  and 
effect.  That  is  to  say,  unlimited  competence  fol- 
lows because,  and  merely  because,  the  State  has  this 
supreme  or  sovereign  power. 

We  must  distinguish,  however,  between  this  poten- 
tiality of  power,  as  a  juristic  conception,  and  the 
State's  actual  competence ;  just  as,  in  international 
law,  the  theoretical  equality  of  sovereign  States  is 
distinguished  from  their  actual  inequality.  At  any 
one  time  the  State  actually  exercises  through  its 
governmental  organization  only  those  powers  which 
it  has  drawn  to  itself  by  formal  adoption.  The 
residue  belongs  to  it  only  in  a  potential  aspect,  and 
at  any  one  time  the  amount  of  this  power,  and  the 
manner  in  which  it  may  be  actually  exercised,  de- 
pends upon  the  character  and  disposition  of  its  citi- 
zens ;  that  is  to  say,  upon  their  willingness  to 
submit  to  such  exercise  without  insurrection.  This 
ultimate  power  of  the  people  to  condition  the  exer- 
cise of  governmental  powers  will  receive  considera- 
tion in  a  subsequent  chapter. 

/  Sovereignty  is  something  more  than  a  collection 
I  of  powers.  It  is  something  more  than  a  mechanical 
\  aggregate  of  separate  and  particular  capacities.     It 

\  1  Theorie  der  Siaatenverbindungen. 


THE   POWER   OF   THE   STATE:    SOVEREIGNTY  195 

does,  indeed,  include  and  necessitate  the  possession 
of  certain  powers,  such  as,  for  example,  those  of  tax- 
ation, of  contracting  treaties,  maintaining  an  armed 
force,  etc. ;  but  its  content  is  not  exhausted  by  an 
enumeration  of  these.  It  is  an  entity  of  itself,  and 
represents  the  highest  political  power  as  embodied  in 
the  State. 

Sovereignty  belongs  to  the  State  as  a  person,  and 
represents  the  supremacy  of  its  will.  Sovereignty 
is  thus  independent  of  its  particular  powers,  in  the 
same  way  that  the  self-conscious  power  of  volition 
and  determination  of  the  individual  human  person 
is  distinguished  from  his  various  faculties  or  the 
aggregate  of  them.  It  is  the  very  possession  of 
this  sovereign  will  that  gives  personality  to  a  politi- 
cally organized  community.  \ 

Sovereignty,  as  thus  expressing  a  supreme  will,  is 
necessarily  a  unity  and  indivisible,  —  unity  being  a 
necessary  predicate  of  a  supreme  will.  As  Rousseau 
truly  says :  "  Though  Power  may  be  divided,  Will 
cannot."  The  logical  impossibility  of  conceiving  of, 
a  divided  Sovereignty  is  apparent  from  the  impos- 
sibility of  predicating  in  the  same  body  two  powers 
each  supreme.  The  will  of  the  State  may  find  its 
form  of  expression  through  different  mouth-pieces, 
and  its  activities  may  be  exercised  through  a  variety 
of  organs,  but  the  will  itself,  as  thus  variously  ex- 
pressed and  performed,  is  a  unity.  In  every  political 
organization  there  must  be  one  and  only  one  source, 
whence  all  authority  ultimately  springs. 

This  leads  us  to  the  second  view  in  which  the  Sov- 

W 


196  THE  NATURE  OF  THE   STATE 

ereignty  of  the  State  is  to  be  considered :  namely,  that 
of  the  relation  of  a  State  to  other  States.  Thus  far, 
we  have  considered  Sovereignty  as  expressing  the  su- 
premacy of  the  State's  will  over  that  of  all  persons 
and  public  bodies  within  its  own  organization :  as 
binding  them  all,  and  being  bound  by  none.  View- 
ing it  outwardly,  now,  in  its  international  aspects, 
Sovereignty  denotes  independence,  or  complete  free- 
dom from  all  external  control  of  a  legal  character. 
The  State  can  be  legally  bound  only  by  its  own 
will.  If  upon  any  one  point,  however  insignificant, 
its  own  will  be  not  conclusive,  but  is  legally  depen- 
dent upon  the  consent  of  another  power,  its  Sover- 
eignty is  destroyed.  Theoretically,  the  State  may 
go  to  any  extent  in  the  delegation  of  the  exercise 
of  its  powers  to  other  public  bodies,  or  even  to 
other  States ;  so  that,  in  fact,  it  may  retain  under 
its  own  direction  only  the  most  meagre  comple- 
ment of  activities,  and  yet  not  impair  its  Sov- 
ereignty. The  State's  essential  unity  is  not  thus 
destroyed,  for  in  all  such  cases  the  other  public 
bodies  or  States,  to  which  have  been  delegated  the 
exercise  of  these  powers,  act  but  as  the  agents  of  the 
State  in  question,  and  the  original  State  still  pos- 
sesses the  legal  power,  at  least,  of  again  drawing  to 
itself  the  actual  exercise  of  the  powers  thus  granted. 
Thus,  mother  countries  may  concede  to  colonies  the 
most  complete  autonomy  of  government,  and  reserve 
to  themselves  a  control  that  may  be  of  such  slight  and 
negative  character  as  to  make  its  exercise  of  the  most 
rare  occurrence ;  yet  as  long  as  such  control  exists, 


THE  POWER   OF  THE  STATE:    SOVEREIGNTY         I97 

the  Sovereignty  of  the  mother  country  over  its 
colony  is  not  released,  and  such  colony  is  to  be  con- 
sidered as  possessing  only  administrative  autonomy, 
not  political  independence.  Again,  in  the  so-called 
Composite  State,  the  individual  States  may  yield 
to  the  central  government  the  exercise  of  almost 
all  their  powers,  and  yet  retain  their  Sovereignty. 
Or,  on  the  other  hand,  a  State  may,  without  de- 
stroying its  Sovereignty,  yield  to  particular  terri- 
torial divisions  such  amplitude  of  power  as  to  create 
of  them  political  bodies  endowed  with  almost  all 
the  characteristics  of  independent  States.  In  all 
States,  indeed,  when  of  any  considerable  size,  effi- 
ciency of  administration  demands  that  certain  pow- 
ers of  local  self-government  be  granted  to  particular 
districts. 

In  all  those  cases  in  which,  owing  to  the  distribu- 
tion of  governing  powers,  there  is  doubt  as  to  the  [ 
political  body  in  which   the   Sovereignty  rests,  the  ' 
test  to   be   applied  is  the   determination   of   which  ' 
authority  has,  in  the  last  instance,  the  legal  power  \ 
to  determine  its  own  competence  as  well  as  that  of 
the  others.     The  relations    between   different    Gov- 
ernments are  often  so  complicated   that  this  point 
is  not  easy  of  determination.     Especially  is  this  dif- 
ficult, where,  as  sometimes  occurs,  the  fundamental 
laws   determining  these   relations   are   expressed   in 
words  whose   literal   interpretation    contradicts    the 
actual  facts  of  the  case.     Thus,  for  example,  in  the 
United  States,  the  individual  States  are  declared  by 
the   constitution  to  be  the  possessors   of  sovereign 


198  THE   NATURE   OF  THE   STATE 

rights,  when  a  careful  analysis  of  the  nature  of  the 
union  shows  this  to  be  impossible.  We  shall  return 
again,  in  the  next  chapter,  to  the  questions  presented 
by  the  so-called  Federal  State. 

This  principle  of  entire  legal  independence  as  a 
consequence  of  Sovereignty  is  not  contradicted  by 
the  existence  of  a  large  body  of  definite  international 
regulations  to  which  all  civilized  nations  render  com- 
mon  obedience.  Nor  is  the  frequent  creation  of 
particular  international  obligations  of  more  or  less 
permanency  by  means  of  treaties  and  conventions 
entered  into  between  States.  The  subjects  of  inter- 
national law  are  sovereign  States,  and  the  validity 
of  then*  promises  to  each  other  rest  upon  no  other 
coercive  force  than  that  of  morality  and  public  ex- 
pediency. In  no  wise  do  the  commands  of  so-called 
international  law  appear  as  directed  by  a  political 
superior  to  a  political  inferior.  Also,  in  the  formula- 
tion and  ratification  of  treaties,  no  power  is  created 
superior  to  that  individually  possessed  by  the  con- 
tracting parties.  As  to  the  subject  matters  to  be 
enforced  by  them,  such  parties  remain  subject  only 
to  their  own  wills,  and  not  to  that  of  a  foreign  power. 
As  Jellinek  briefly  puts  it  "  Der  Staatenvertrag  hindet, 
dber  er  untericerft  nicJit.''  ^  Rebus  sic  stantibus,  ex- 
pressed or  implied,  is  a  clause  in  every  treaty,  and 
States  have  ever  asserted  the  right  to  declare  such  in- 
struments of  no  force  when  by  change  of  conditions 
their  welfare  has  become  so  greatly  affected  or 
menaced  as  to  overbalance  the  evil  results  to  be  ex- 

1  Gcsetz  und  Verordnung,  p.  205. 


THE   POWER   OF  THE   STATE:    SOVEREIGNTY         199 

pected,  by  way  of  retaliation  or  otherwise,  from  the 
violation  of  their*  faith  as  given  in  a  treaty.  Thus 
says  Vattel  in  his  Law  of  Nations :  "  Though  a  simple 
injury  or  some  disadvantage  in  a  treaty  be  not  suffi- 
cient to  invalidate  it,  the  case  is  not  the  same  with 
those  inconveniences  that  would  lead  to  the  ruination 
of  the  nation.  Since,  in  the  formulation  of  every 
treaty,  the  contracting  parties  must  be  vested  with 
sufficient  powers  for  the  purpose,  a  treaty  pernicious 
to  the  State  is  null,  and  not  at  all  obligatory,  as  no 
conductor  of  a  nation  has  the  power  to  enter  into 
engagements  to  do  such  things  as  are  capable  of 
destroying  the  State,  for  whose  safety  the  Govern- 
ment is  entrusted  to  him.  The  Nation  itself,  being 
necessarily  obliged  to  perform  every  act  required  for 
its  preservation  and  safety,  cannot  enter  into  en- 
gagements contrary  to  its  indispensable  obligations." 
And  this  is  the  assertion  of  the  writer,  who,  possibly 
more  than  any  other  authority  on  International  Prin- 
ciples, emphasizes  the  obligations  of  States  as  moral 
individuals. 

It  therefore  appears  that  the  force,  not  only  of 
general  international  regulations,  but  of  those  prin- 
ciples specially  created  by  nations  by  mutual  con- 
sent and  promise,  is  no  greater  than  that  derived 
from  the  continued  consent  and  voluntary  accept- 
ance of  the  legal  subjects  upon  whom  the  regulations 
are  imposed. 

Austin,  in  his  lectures,  refused  to  designate  as 
positive  law  the  rules  that  control  the  international 
relations  of   States,  and  in  this  he  was,  therefore, 


200  THE  NATUEE   OF  THE   STATE 

logically  and  scientifically  correct.  The  term  "law," 
when  applied  to  the  rules  and  principles  that  pre- 
vail between  independent  nations,  is  misleading 
because  such  rules  depend  for  their  entire  validity 
upon  the  forbearance  and  consent  of  the  parties  to 
whom  they  apply,  and  are  not  and  cannot  be 
legally  enforced  by  any  common  superior.  In  a 
command  there  is  the  necessary  idea  of  superior 
and  inferior,  while  in  international  relations  the 
fundamental  postulate  is  that  of  the  theoretical 
equality  of  the  parties,  however  much  they  may 
differ  in  actual  strength.  Finally,  there  exist  no  tri- 
bunals wherein  these  principles  may  be  interpreted 
and  applied  to  particular  cases.  The  uniformity 
with  which  these  principles  are  followed,  and  the 
practical  necessity  under  which,  at  least,  the  smaller 
States  are  to  obey  them,  does  not  alter  the  case. 
The  sanction  to  most  of  these  rules  may  be,  as  a 
matter  of  fact,  very  strong  and  effective,  but  it  is 
not  a  legal  sanction.  Regulations  which  depend 
upon  the  consent  of  the  parties  to  whom  they 
apply,  not  only  for  their  interpretation  and  appli- 
cation, but  for  their  enforcement,  certainly  partake 
insufficiently  of  those  qualities  which  would  cause 
them  to  be  designated,  m  sensu  strictiore,  laws. 
International  regulations  thus  resemble  in  this  respect 
many  of  tlie  agreements  that  are  daily  entered  into 
between  individuals,  by  which  moral  obligations  are 
incurred,  but  for  the  enforcement  of  which,  in  case 
of  violation,  there  are  no  legal  means  provided.  Of 
this  character,  for  example,  are  the  verbal  promises 


THE   POWER   OF   THE   STATE:    SOVEREIGNTY  201 

to  pay  tlie  debt  of  another,  certain  contracts  in  regard 
to  land  not  expressed  in  writing ;  and,  indeed,  the 
countless  minor  engagements  entered  into  between 
persons,  which  cannot  be  enforced  in  courts  of  law, 
and  which  yet  lay  the  parties  under  a  moral  obliga- 
tion. 

Upon  this  point,  and  in  fact  upon  the  whole  ques- 
tion as  to  whether  custom  is  law  before  its  acceptance 
by  the  State  as  a  rule  of  conduct  to  be  enforced,  a 
most  luminous  case  is  that  of  The  Queen  v.  Keyn} 
In  this  case,  the  defendant,  an  officer  commanding  a 
foreign  ship,  when  within  two  miles  of  Dover  negli- 
gently ran  his  vessel  into  an  English  ship  and 
caused  the  death  of  a  passenger.  For  this  he  was 
tried  before  an  English  criminal  court  and  convicted 
of  manslaughter.  Upon  appeal,  the  question  of 
jurisdiction  was  raised,  the  point  being  alleged  that 
though  w^riters  on  so-called  international  law.  were 
substantially  agreed  that  it  was  the  custom  of  civil- 
ized nations  to  regard  the  coast  water,  to  a  distance 
greater  than  that  at  which  the  accident  occurred 
from  England,  as  belonging  to  the  territory  of  the 
country  the  coasts  of  which  it  washes ;  yet,  that  it 
did  not  appear  that  this  doctrine  had  ever  been 
explicitly  accepted  by  any  English  court  or  legis- 
lature. It  therefore  remained  to  be  decided  whether 
or  not  the  mere  fact  of  the  acknowledged  utility, 
and  almost  universality  of  acceptance,  of  tliis  inter- 
national principle  could  give  to  it  sufficient  legal 
force   to   permit  it  to  be  enforced  by  the  English 

^L.R.2  Ex.  Div.  63. 


202  THE   NATURE   OF   THE   STATE 

courts.  The  majority  of  the  court  held  (and  cor- 
rectly as  we  maintain)  that  it  did  not.  Thus  asks 
Lord  Chief  Justice  Cockburn,  in  the  opinion  ren- 
dered :  "  Can  a  portion  of  that  which  was  before 
high  sea  have  been  converted  into  British  territory 
without  any  action  on  the  part  of  the  British  Gov- 
ernment or  Legislature  —  by  the  mere  assertions  of 
writers  on  public  law  —  or  even  by  the  assent  of 
other  nations?  And  when  in  support  of  this  posi- 
tion, or  of  the  theory  of  the  three-mile  zone  in  gen- 
eral, the  statements  of  the  writers  on  International 
Law  are  relied  on,  the  question  may  well  be  asked, 
upon  what  authority  are  these  statements  founded? 
When  and  in  what  manner  have  the  nations,  who 
are  to  be  affected  by  such  a  rule,  as  these  writers, 
following  one  another,  have  laid  down,  signified 
their  assent  to  it  ?  —  to  say  nothing  of  the  difficulty 
which  might  be  found  in  saying  to  which  of  these 
conflicting  opinions  such  assent  had  been  given."  ^ 

As  is  to  be  expected,  Maine  is  unsatisfied  with  this 
reasoning.  Just  as  he  sees  in  custom  the  source  of 
municipal  law,  so  he  sees  in  the  consent  of  nations 
the  creation  of  true  international  law.  He  conceives 
himself  further  supported  in  this  view  by  the  propo- 
sition laid  down  in  Wharton's  Digest  of  the  Inter- 
national Law  of  the  United  States,  according  to 
which  "the  law  of  the  United  States  ought  not,  if 
it  be  avoidable,  so  to  be  construed  as  to  infringe 
the  common  principles  and  usages  of  nations,  and  the 
general  doctrines  of  international  law."    Now,  to  the 

^  Quoted  by  Maine,  International  Law,  p.  43. 


THE  POWER   OF  THE   STATE:    SOVEREIGNTY         203 

writer  this  would  seem  to  heave  a  diametrically  oppo- 
site effect,  —  to  invalidate  Maine's  position  rather 
than  to  maintain  it.  "  Ought  not,  if  it  be  avoidable, 
so  to  be  construed."  Here  is  plainly  indicated  the 
power  of  the  United  States  Congress  to  enact  laws 
in  conflict  with  international  doctrines,  and  hence 
what  binding  force  can  such  rules  have  over  the 
United  States  beyond  its  own  consent  to  them?  It 
is  just  as  the  word  ''ought"  indicates,  —  only  a 
moral  duty,  or  one  of  political  expediency.^ 

In  the  absence,  then,  of  a  common  sujoerior,  the 
only  rational  view  in  which  States  are  to  be  re- 
garded in  their  relations  to  each  other  is  that  of 
freedom  from  all  possible  legal  control ;  and  with 
their  mutual  interests  subject  only  to  such  regula- 
tions as  the  considerations  of  justice  and  expediency 
shall  dictate.  International  '•'  rights,"  strictly  speak- 
ing, do  not  exist.  Nations  are,  as  individuals,  in 
that  state  of  nature  in  which  Hobbes,  Locke,  and 
Rousseau  placed  primitive  man.  As  Spinoza  says : 
"  dime  civitates  natura  hostes  sunt.     Homines  cnhn  in 

1  "  The  expression 'International  Law,' "says  Stephen,  inhi^  History 
of  Criminal  Law,  "  is,  I  think,  misleading.  .  .  .  Whon  it  is  applied 
to  principles  and  rules  prevailing  between  independent  nations,  the 
word  *  law '  conveys  a  fabe  idea,  because  the  principles  and  rules 
referred  to  are  not  and  cannot  be  enforced  by  any  common  superior 
upon  the  nations  to  the  conduct  of  which  they  apply.  When  it  is 
applied  to  parts  of  the  law  of  each  nation  in  v>'hich  other  nations  are 
interested,  the  word  'law'  is  correct,  but  the  word  'international'  is 
likely  to  mislead,  because  though  such  laws  are  laws  in  the  fullest 
sense  of  the  word,  and  are  enforced  as  such,  they  are  the  laws  of  each 
individual  nation,  and  are  not  laws  betw'een  nation  and  nation.  .  .  . 
If  Parliament  were  to  pass  an  act  expressly  and  avowedly  opposed  to 
the  law  of  nations,  the  English  courts  would  administer  it  in  prefer- 
ence to  the  law  of  nations,  whatever  that  may  be  "  (pp.  35  et  scq.). 


204  THE   NATURE  OF  THE   STATE 

statu  naturali  Jiostes  sunt.  Qui  igitur  jus  naturae 
extra  civitatem  retinent  Jiostes  manent."'^  The  jura 
belli  are  the  powers  of  one  State  to  attack  or  defend 
itself  against  another.  The  jura  pactis  lasts  only 
as  long  as  the  agreement,  the  foedus  lasts,  and  this 
lasts  only  as  long  as  the  fear  or  hope  which  led  to 
its  being  made  continues  to  be  shared  by  the  nations 
which  made  it. 

No  more  than  so-called  international  law,  does 
constitutional  law  place  a  legal  limitation  upon  the 
Sovereignty  of  the  State.  Not,  however,  for  the  same 
reasons  as  those  advanced  by  Austin.  According 
to  him,  constitutional  law  (designating  by  that  term 
those  rules  that  define  the  organization  of  the  State, 
and  the  extent  and  manner  of  exercise  of  govern- 
mental powers)  is  not  law  at  all  because  purporting 
to  control  the  State,  which  is,  ex  hypothesi,  incapable 
of  legal  limitation.  That  which  gives  to  them  force, 
says  Austin,  is  public  opinion  regarding  their  expe- 
diency and  morality;  they  are  not  uttered  by  the 
State,  nor  do  they  legally  control  it.  In  fine,  they 
belong  to  the  class  of  moral  rather  than  legal  rules. 

In  this  Austin  is  plainly  wrong.  The  position 
does  not  follow  as  a  logical  necessity  from  his 
definition  of  law.  Constitutional  provisions  do  not 
purport  to  control  the  State,  but  the  Government. 
This  vital  distinction  Austin  did  not  grasp.  As  we 
have  seen,  the  State  is  not  limited  to  its  ordinary 
legislature    as  a  mouth-piece  for  the   expression  of 

1  Tractalus  politicus,  III.  13.  Cf.  Green's  Philosophical  Works, 
Vol.  n.  p.  358. 


THE   POWER   OF  THE   STATE:    SOVEREIGNTY  205 

its  will.  Whether  constitutional  provisions  become 
established  by  custom,  and  are  acquiesced  in  by  the 
political  authority,  or  are  formally  uttered  in  consti- 
tutional conventions,  they  express  the  supreme  will 
of  the  State.  Thus  in  the  United  States,  though 
federal  constitutional  conventions  may  be  but  rarely 
called  into  existence,  they  are,  when  so  created,  as 
much  organs  of  the  State,  as  is  the  Congress  that 
maintains  a  continued  existence ;  and  their  utter- 
ances are  as  much  expressions  of  the  State's  will 
(and  therefore  laws)  as  are  the  statutory  enactments 
of  the  ordinary  law-making  body. 

At  any  one  time,  the  Government  of  a  State  is  the 
sovereign  organization  of  that  State,  and  possesses 
in  its  entirety  all  the  sovereign  powers  of  the  State. 
Not  that  any  one  organ  thereof  is  able  to  wield  the 
entire  power  of  the  State,  but  that  all  the  organs 
together  possess  that  power.  There  is  nothing  in 
the  essence  of  the  sovereign  State  to  indicate  that 
its  Sovereignty  may  not  be  given  to  different  organs 
for  its  exercise.  In  the  United  States,  that  portion 
of  the  sovereign  power  that  may  not  be  exercised 
by  its  other  organs,  is  possessed  by  its  constitutional 
conventions  for  purposes  of  constitutional  amend- 
ment, or  by  the  State  Legislatures  acting  as  such. 
Though  the  necessity  may  but  rarely,  and  possibly 
never,  arise  for  calling  these  latter  organs  into 
activity,  their  existence  is  provided  for  in  our 
scheme  of  governmental  organization,  and  when 
there  is  the  necessity  for  the  exercise  of  that  part 
of  the    State's  power  wdiich  is  given  to  them,  their 


206  THE   NATURE   OF   THE   STATE 

action  will  be  had.  But  to  speak  of  a  State  as  not 
being  completely  organized  in  its  government,  seems 
as  much  an  absurdity  as  to  say  that  a  man  is  not 
completely  organized  in  his  physical  frame.  The 
Government  is  the  State's  organization.  By  very 
necessity,  the  power  of  every  person  must  be  lodged 
somewhere  in  its  own  organs.  The  State  is  society 
politically  organized,  and  there  can  be  no  State 
action  or  political  existence  outside  of  such  organ- 
ization.^ 

The  fact  is,  that  Austin's  conception  of  the  nature 

1  Professor  Burgess  speaks  of  a  State  as  not  necessarily  completely 
organized  in  its  government.  —  Political  Science  and  Constitutional 
Law.  But  it  is  to  be  observed  that  with  tliis  writer  the  terms  "Gov- 
ernment "  and  "  State  "  are  not  distinguished  in  the  same  way  that 
they  liave  been  in  this  treatise.  With  him,  the  former  of  these  two 
terms  is  used  to  describe  the  ordinary  administrative  and  legislative 
organs,  while  the  latter  has  reference  to  the  body  politic  as  organized 
in  constitutional  convention,  or  otherwise,  for  the  creation  of  funda- 
mental or  constitutional  law.  Thus,  for  example,  he  says  of  the 
United  States :  "  AVith  us  the  government  is  not  the  sovereign 
organization  of  the  State.  Back  of  the  government  lies  the  constitu- 
tion ;  and  back  of  the  constitution  the  original  sovereign  state,  which 
ordains  the  constitution  both  of  government  and  of  liberty."  (Vol.  T. 
p.  57.)  Of  England,  he  says :  "  First,  the  king  was  the  State  as  well 
as  the  government.  Then  the  nobles  became  tlie  State,  and  the  king 
became  government  only.  Then  the  commons  became  the  State,  and 
both  king  and  lords  became  but  parts  of  the  government."  (Vol.  I. 
p.  09.)  There  is,  possibly,  no  logical  objection  to  using  these  terms 
in  the  above  manner,  and  tlie  distinction  between  constituent  and 
other  functions  of  the  political  power  is  of  groat  value  in  an  analysis 
of  governmental  duties.  At  the  same  time,  it  appears  to  us,  that  to 
apply  the  names  "State"  and  "Government"  to  the  body  politic 
when  acting  in  those  two  capacities,  cannot  but  create  confusion. 
Apart  from  the  inherent  difficulty  of  applying  them  exactly  in  this 
sense  to  particular  cases,  there  is  suggested  an  antithesis  between  two 
classes  of  functions  that  differ  not  as  to  kind,  but  only  as  to  the 
pubJRct  matter  with  which  they  have  to  deal.  This  point  will  appear 
more  plainly  in  our  next  chapter. 


THE   POWER   OF  THE   STATE:    SOVEREIGNTY  207 

of  constitutional  law  was  largely  determined  by  the 
particular  conditions  under  which  the  powers  of  his 
own  government  were  exercised.  As  a  matter  of 
fact  a  very  large  portion  of  the  rules  according 
to  which  the  English  Government  is,  and  was  at 
Austin's  time,  habitually  exercised,  are  truly  to  be 
considered,  as  he  maintains,  not  laws  at  all  but 
customary  rules  of  morality  and  political  expedi- 
ency. They  are,  as  Dicey  says,  "  Conventions,  under- 
standings, habits  or  practices,  which,  though  they 
may  regulate  the  conduct  of  the  several  members 
of  the  sovereign  power  of  the  Ministry,  or  of  other 
officials,  are  not  in  reality  laws  at  all  since  they 
are  not  enforced  by  the  courts."  ^  Examples  of  these 
conventions  are  the  maxims,  that  the  King  must 
consent  to'  any  bill  passed  by  the  two  Houses  of 
Parliament ;  that  the  House  of  Lords  may  not  origi- 
nate a  money  bill ;  that  the  Ministers  must  resign 
office  when  they  cease  to  command  the  confidence 
of  the  House  of  Commons,  etc. 

That  which  distinguishes  these  conventions  or 
customs  of  the  constitution  from  positive  law  is  not 
so  much  their  lack  of  actual  binding  power  (for  so 
great  is  their  actual  obligatory  force  as  to  make  the 
open  contravention  of  many  of  them  as  unlikely 
as  if  they  were  actually  established  in  a  funda- 
mental instrument  of  government),  but  the  fact 
that  should  they  be  violated,  no  greater  consequence 
would  be  entailed  upon  the  officers  so  doing,  than 
that    of  popular    blame    and    unpopularity.     There 

1  Law  of  the  Constitution,  4th  ed.  p.  23. 


208  THE  NATURE   OF  THE   STATE 


would  be  no  legal  action  that  could  be  sustained 
either  to  enforce  the  recognition  of  such  violated 
maxims  or  to  punish  their  contravention.^ 

Now,  in  so  far  as  Austin  limited  the  exclusion 
of  constitutional  regulations  from  the  domain  of 
law  to  principles  of  this  class,  he  was  logically 
correct.  But  he  did  more  than  this.  He  applied 
the  exclusion  without  reservation  to  all  provisions 
that  purport  to  regulate  the  manner  of  exercise  of 
the  State's  power.     This  was  his  error. 

The  freedom  of  the  State  from  all  legal  limita- 
tions upon  its  competence  does  not  negate  the  power 
of  a  State  to  set  formal  limits  to  the  exercise  of  its 
own  powers,  such  as  are  seen  in  the  restrictions 
placed  upon  most  modern  States  in  their  written 
constitutions.  Nor,  contrariwise,  do  the  existence 
of  these  fundamental  restrictions,  however  severe, 
contradict  the  possession  of  the  sovereign  power  by 
such  States.  The  creation  of  these  constitutional 
limitations  is  due  to  the  fact  that,  as  the  necessity 
for  political  rights  guaranteed  to  the  individual  has 
become  recognized,  the  propriety  of  fixing  with  a 
certain  degree  of  definiteness  the  powers  legally  to 
be  exercised  by  Governments,  has  been  appreciated; 
and  such  limits  upon  governmental  activity  have 
been  given  a  fair  degree  of  permanency  by  means 

1  As  shown,  however,  by  Dicey,  though  these  constitutional  con- 
ventions are  not  capable  of  legal  enforcement,  yet  so  intimately  are 
they  connected  with  those  operations  of  the  English  government  that 
are  backed  by  legal  sanctions,  that  it  would  bo  practically  impossible 
for  a  ministry  to  carry  on  the  administration  of  public  affairs  in  oppo- 
sition to  them,  without  bringing  itself  into  almost  immediate  conflict 
with  positive  law.     Op.  cit.  Chap.  XV. 


THE  POWER   OF  THE  STATE:   SOVEKEIGNTY  209 

of  self-set  restrictions  as  to  the  manner  in  wliicli 
such  limits  are  to  be  formally  and  legally  altered. 
In  almost  all  cases,  also,  the  extra  importance  of 
constitutional  laws  has  led  statesmen  to  provide  that 
a  more  direct  expression  of  the  opinion  of  the  people 
shall  be  had  for  their  adoj^tion  or  amendment,  than 
is  called  for  in  the  case  of  ordinary  laws.  Thus, 
in  the  governmental  schemes  of  most  States,  while 
ordinary  laws  may  be  enacted  by  the  representative 
legislatures ;  constitutional  laws,  so-called,  require  a 
special  vote  by  the  people,  or  at  least  the  creation 
of  a  convention  specially  convened  for  the  purpose. 
As  thus  situated,  modern  States,  though  potentially 
possessed  of  supreme  power,  cannot  legally  draw  to 
themselves  additional  powers  for  actual  adminis- 
tration except  in  the  formal  ways  thus  provided. 
Powers  otherwise  assumed  and  exercised  are  revolu- 
tionary acts,  and,  when  permanently  consented  to  by 
the  people,  amount,  ^9?^o  tanto,  to  the  establishment 
by  the  people  of  a  new  State. 

All  law  is  a  formal  limitation  of  Sovereignty. 
Not  only  constitutional  law,  but  all  law,  public  and 
private,  substantive  and  adjective,  constitutes,  while 
in  force,  a  formal  limitation  upon  the  power  of  the 
State.  Through  laws  are  fixed  the  rights  and  the 
duties  of  individuals,  and  the  manner  in  which  such 
rights  are  to  be  exercised  and  enforced.  As  such, 
they  are  all  of  the  same  validity  and  are  as  binding 
upon  the  Government  as  are  constitutional  provi- 
sions. A  public  official  w411  be  as  readily  checked 
by   the   courts   for   the   exercise    of    a   power   that 


210  THE   NATURE   OF  THE   STATE 

contravenes  an  ordinary  statute,  as  for  an  action 
tliat  transgresses  a  rule  of  constitutional  law.  Con- 
stitutional laws  differ  from  other  laws  only  in  their 
subject  matter  and  in  the  manner  in  which  they  are 
established,  amended  or  repealed.  In  some  coun- 
tries, as,  for  example,  Germany,  Prussia,  Italy  and 
England,  there  are  not  even  these  latter  distinctions.^ 

1  As  evidencing  the  extent  to  which  constitutional  and  ordinary 
law  are  assimilated  in  Germany,  we  may  quote  the  following  from 
Laband's  standard  work,  Da.s'  Staatsrecht  des  Deutschen  Reiches  (2d  ed. 
I.  546).     "There  is  no  will  in  the  State,"  says  he,  "superior  to  that 
of  the  sovereign,  and  it  is  from  this  will  that  both  the  constitution 
and  laws -draw  their  binding  force.     The  constitution  is  not  a  mysti- 
cal power  hovering  above  the  State ;  but,  like  every  other  law,  it  is  an 
act  of  its  will,  subject  accordingly  to  the  consequences  of  changes  in 
the  latter.     A  document  may,  it  is  true,  prescribe  that  the  constitu- 
tion may  not  be  altered  indirectly  (that  is  to  say,  by  laws  affecting 
its  content),  that  it  may  be  altered  only  directly,  by  laws  modifying 
the  text  itself.     But  when  such  a  restriction  is  not  established  by 
positive  rule,  it  cannot  be  derived  by  implication  from  the  legal  char- 
acter of  the  constitution  and  from  an  essential  difference  between  the 
constitution  and  ordinary  laws.     The  doctrine  that  individual  laws 
ought  always  to  be  in  harmony  with  the  constitution,  and  that  they 
must  not  be  incompatible  with  it,  is  simply  a  postulate  of  legislative 
practice.    It  is  not  a  legal  axiom.    Although  it  appears  desirable  that 
the  system  of  public  and  private  laws  established  by  statute  shall  not 
be  in  contradiction  with  the  text  of  the  constitution,  the  existence  of 
such  a  contradiction  is  possible  in  fact  and  admissible  in  law,  just  as 
a  divergence  between  the  penal,  commercial,  or   civil  code  and   a 
subsequent  special  law  is  possible."      (Cf.  Borgeaud,  Adoption  and 
Amendment  of  Constitutions  in  Europe  and  America,  trans,  p.  G9  et  seq., 
where  this  passage  is  quoted  and  adversely  commented  upon.)     Such 
a  condition  as  above  described  by  Laband  would,  of  course,  be  impos- 
sible in  the  United  States,  where  the  decision  as  to  the  conformity  of 
a  given  statute  with  the  constitution  is  vested  in  an  independent 
judiciary.     But  in  the  German  Empire,  though  it  is  provided  that  no 
amendment  of  the  constitution  shall  be  made,  if  there  be  fourteen 
votes  opposing  in  the  Federal  Council  (Bundesraih) ;  yet,  since  it  lies 
only  with  the  legislature  or  the  Emperor  to  decide  when  a  given  statr 
ute  does  operate  as  an  amendment  of  the  constitution,  it  is  possible  to 
change  that  instrument  in  any  way  desired  by  ordinary  legislative 


THE   POWER   OF   THE   STATE:   SOVEREIGNTY  211 

It  is  common,  indeed,  to  speak  of  constitutional 
law  as  of  a  higher  order  of  law  than  statutes.  But 
as  said,  this  is  true  only  as  concerns  subject  matter, 
not  as  regards   validity.     Both  are  equally  binding 

enactment,  so  long  as  that  body  or  the  Emperor  does  not  see  fit  to  de- 
clare such  acts  to  be  unconstitutional  in  character.  Thus,  as  a  matter 
of  fact,  the  German  constitution  has  been  several  times  modified,  as 
Laband  says  it  properly  may  be  done,  by  special  laws  in  which  more 
than  fourteen  opposing  votes  have  been  registered  in  the  Upper 
Chamber.  What  has  been  here  said  in  reference  to  the  Empire  holds 
true  as  well  in  Prussia.  In  France,  likewise,  there  is  no  provision 
guarding  against  a  modification  of  its  constitution  by  ordinary  laws, 
which,  without  nominally  changing  its  text,  do  in  fact  violate  its 
principles.  Thus  Dicey,  in  enumerating  the  various  senses  in  which 
the  term  "  unconstitutional  law  "  is  used,  says :  "  The  expression,  as 
applied  to  a  law  passed  by  a  French  Parliament,  means  that  the  law, 
e.g.  extending  the  length  of  the  President's  tenure  of  office,  is  opposed 
to  the  articles  of  the  constitution.  The  expression  does  not  necessa- 
rily mean  that  the  law  in  question  is  void,  for  it  is  by  no  means  cer- 
tain that  any  French  court  will  refuse  to  enforce  a  law  because  it  is 
unconstitutional.  The  word  would  probably,  though  not  of  necessity, 
be,  when  employed  by  a  Frenchman,  a  term  of  censure"  {Law  of  the 
Constitution,  4th  ed.  Appendix,  Note  VI.).  In  a  recent  very  able 
analysis  of  the  present  status  of  constitutional  law  in  France,  the 
writer  says :  "  The  first  point  to  be  emphasized  is  the  tendency  which 
now  leads  the  French  legislator  to  render  the  transformation  of  the 
constitutional  laws  easier  by  transferring  to  the  domain  of  ordinary 
legislation,  that  is  to  say,  placing  within  the  normal  competence  of 
Parliament,  matters  belonging  to  the  domain  of  constitutional  law." 
As  examples  of  this  tendency  are  cited  the  amendment  of  June  21, 
1879,  which  strikes  out  from  the  constitution  the  provisions  relating 
to  the  seat  of  government,  and  that  of  Aug.  14,  1884,  Article  3,  which 
deprives  of  their  constitutional  force  Articles  1  to  7  of  the  Constitu- 
tional Laws  of  February,  1875.  (The  Development  of  the  Present  Con- 
stitution of  France,  by  Professor  R.  Saleilles,  in  the  A  nnals  of  the  A  m. 
Acad,  of  Pol.  and  Hoc.  Science,  July,  1895.)  For  an  account  of  the 
manner  in  which  the  present  Italian  constitution  is  being  constantly 
modified  by  statute,  see  Annals  of  the  Am.  Acad.  VI.  31-57,  article  by 
G.  Arangio  Ruiz. 

Another  fact  worthy  of  note  in  reference  to  German  and  Prussian 
law  is  that  it  is  held  by  their  leading  publicists  that  the  essential  ele- 
ment in  legislation  is  not  the  action  of  the  legislative  chambers  at  all, 


212  THE   NATURE   OF   THE   STATE 

upon  the  courts.  Because  constitutions  often  set 
limits  to  the  legal  power  of  legislatures,  the  enact- 
ment by  them  of  laws  transcending  such  limits  is 
declared  by  the  courts    to   be   null  and  void.     But 

but  the  approval  of  the  King  in  Prussia  and  of  the  Federal  Council 
in  the  Empire.  The  Chambers  simply  draft  the  contents  of  the  pro- 
posed law.  Its  legal  character  is  wholly  due  to  the  approval  of  the 
executive.  Thus  says  Schulze  (Preussisches  Staatsrecht,  2d  ed.  I. 
p.  158):  "Everything  which  is  decided  or  carried  out  in  the  State 
takes  place  in  the  name  of  the  King.  He  is  the  personified  power  of 
the  State."  And  again:  "The  chambers  have  no  co-ordinate  sover- 
eignty, and  no  co-imperium.  As  individual  members  and  as  a  whole, 
they  are  subjects  of  the  King."  (^Op.  cit.  I.  p.  567-8.)  "  In  the  accept- 
ance or  rejection  by  the  King  lies  the  really  decisive  act.  Only  the 
approval  of  the  King  converts  a  will  into  a  law.  ...  It  does  not 
correspond  with  the  theory  of  German  constitutional  law  to  speak 
ot  the  various  factors  of  legislation,  still  less  to  designate  the  positive 
law-creating  power  of  the  King  as  simply  a  negative  veto.  The  King 
is  not  only  one  of  the  factors  in  legislation,  he  is  the  law  giver  himself" 
{Op.  cit.  II.  p.  21-22.  Cf .  The  Constitution  of  Prussia,  Translated  and 
Supplied  with  an  Introduction  and  Notes  by  J.  H.  Robinson,  published 
as  supplement  to  the  Annals  of  the  Am.  Acad.  Vol.  V.  No.  2,  in  which 
the  above  citations  from  Schulze  are  quoted.)  Likewise  says  Laband 
in  reference  to  imperial  law:  "  The  sovereignty  of  the  State  does  not 
enter  into  the  determination  of  the  content  of  law,  but  only  into  the 
sanction  which  gives  to  the  law  its  value.  The  sanction  alone  is  an 
act  of  legislation  in  the  legal  sense  of  the  word  "  (Das  Staatsrecht  des 
Deutschen  Reiches,  2d  ed.  Vol.  I.  p.  517,  quoted  by  Borgeaud,  op.  cit. 
p.  70).  To  much  the  same  effect  as  the  above  is  the  view  of  the  Aus- 
trian publicist,  Jellinek.  "  Nicht  die  kammern  im  Vereine  mit  dem 
Monarchen,  sondern  der  Monarch  alleln  nimmt  die  entscheidende  legisla- 
torische  Thutigkeit  uor,"  says  he.  "Die  Zustimmung  der  kammern  zum 
gesetzeshefehle  ist  Bedlngung,  nicht  Ursache  desselhen."  (Gcsetz  und 
Verordnung,  p.  317.) 

Reasoning  the  same  as  above  is  likewise  applicable  to  English  law, 
notwithstanding  the  apparent  weakness  of  the  Crown  in  that  country 
and  the  actual  overwhelming  power  of  the  "Commons."  In  theory, 
at  least,  all  British  law  owes  its  existence  to  the  will  of  the  Throne, 
and  Queen  Victoria  possesses  to-day,  in  a  strict  juristic  sense,  the 
same  plenitude  of  legislative  power  that  William  the  Conqueror  exer- 
cised. Professor  Ilearn,  in  his  work  on  The  Government  of  England, 
is  perhaps  the  one  among  English  writers  who  most  strongly  empha- 


THE  rOWER  OF  THE   STATE:    SOVEREIGNTY         213 

when  so  acting,  the  courts  do  not  thereby  recognize 
a  conflict  of  laws  in  which  an  inferior  law  yields 
to  the  higher  validity  of  a  superior  one.  That 
which  they  do,  is  simply  to  say  that  the  statute  in 
question,  though  enacted  in  the  usual  form,  is  not 

sizes  this  point.  "  We  hear  constantly  of  the  roj^al  veto,"  says  he, 
"of  its  absolute  character,  and  of  the  danger  that  its  revival  might 
produce.  It  is  assumed  that  the  power  of  legislation  resides  in  the 
council;  and  that  the  sovereign  has  merely  a  negative  control  on  its 
deliberation,  which  power,  however,  he  is  bound  not  to  exercise. 
Such  a  doctrine  is  altogether  inconsistent  with  a  right  understanding 
of  our  constitution.  The  very  use  of  the  term  '  Veto '  suggests  a 
false  analogy.  There  is  nothing  in  common  between  the  refusal  of 
our  King  to  add  to  or  alter  the  law,  and  the  power  of  a  Roman 
tribune  to  prevent  in  a  particular  instance  the  application  of  an 
existing  law.  Every  act  of  Parliament  bears  in  its  very  front  the 
work  of  its  original.  It  is  'enacted  by  the  Queen's  Most  Excellent 
Majesty.'  It  is  in  the  Crown,  and  not  in  the  body  which  law  assigns 
as  the  assistants  and  advisers  of  the  Crown,  that  our  constitution 
places  this  right.  It  is  the  King,  as  the  old  Year  Book  asserts,  that 
'  makes  the  law  by  the  assent  of  the  peers,  etc.,  and  not  the  peers  and 
the  commune.'  The  power  of  legislation  resides  in  Queen  Victoria  no 
less  than  it  resided  in  "William  the  Norman ;  but  the  conditions  under 
which  that  power  is  exercised  are  indeed  very  different "  (p.  51.  Cf. 
Jellinek,  Gesetz  und  Verordnung,  Pt.  I.  Ch.  I.). 

As  regards  legislation  in  the  United  States,  it  need  scarcely  be 
said  that  all  of  the  departments  of  its  government  trace  their  origin 
to  the  same  source ;  and,  in  so  far  as  they  divide  among  them  the  law- 
making power,  are  co-ordinate  organs  for  the  exercise  of  the  sovereign 
power.  Thus  the  final  approval  affixed  by  the  President  to  the  acts 
of  Congress  is  essentially  a  legislative  act,  but  is  not  a  more  vital 
element  in  the  law-creating  process  than  is  the  approval  of  the  Cham- 
bers. That  is  to  say,  the  law,  as  finally  established,  embodies  the  joint 
■wiU  of  the  President  and  Congress,  and  not  that  of  one  alone.  As 
regards  his  function  of  approving  or  disapproving  of  acts  of  Congi-ess, 
the  President  is  to  that  extent  as  much  a  part  of  the  legislative  organ 
as  is  any  Representative  or  Senator.  The  case  is  not  changed  even  in 
those  cases  in  which  laws  are  passed  over  the  presidential  veto.  His 
will  is  overcome,  but  not  excluded  from  the  legislative  act  any  more 
than  the  will  of  any  member  of  the  legislative  bodj'^  itself  may  be  said 
to  be  so  treated,  when  his  vote  is  with  that  of  the  minority. 


214  THE   NATURE   OF   THE    STATE 

law  at  all,  and  never  was  law,  because  its  subject 
matter  did  not  lie  within  the  legal  competence  of 
the  legislature  enacting  it.  As  Cooley  says  in  his 
Principles  of  Constitutional  Law,  "  Such  enactment 
is  in  strictness  no  law,  because  it  establishes  no 
rule :  it  is  merely  a  futile  attempt  to  establish  a 
law."  ^  Strictly  speaking,  then,  the  term  ''unconsti- 
tutional law  "  is  a  contradictio  in  adjecto. 

Carrying  this  point  still  further,  it  will  be  seen 
that  this  distinction  as  to  degree  of  validity  is  not 
to  be  drawn  between  law  and  ordinance.  As  ordi- 
narily understood,  an  ordinance  signifies  a  command 
of  limited  application,  not  necessarily  permanent, 
and  usually  issued  as  an  administrative  direction  by 
a  department  of  Government.  If  legally  issued, 
however,  that  is,  if  within  the  legal  competence  of 
the  authority  uttering  it,  these  ordinances  are  of 
equal  legal  validity  with  the  more  general  and 
formal  mandates  of  the  State. 

To  repeat,  then,  the  limitations  upon  State  action 
set  by  law  are  obviously  merely  formal  in  character. 
They  are  self-set  by  the  State,  and  the  same  power 
that  has  decreed  them  still  has  the  power  to  alter  or 
abolish  them,  though  this  alteration  or  abolishment 
must  be  done  in  the  formal  and  legal  way.  An 
unalterable  law  is  a  legal  impossibility. 

In  other  words,  it  must  ever  be  the  case  that  even 
the  most  fundamental  provisions  contained  in  written 
and  formally  adopted  instruments  of  government  are 
capable  of  alteration.     To  this  assertion  it  may  be 

^  Student's  Edition,  p.  24. 


THE   POWER   OF   THE   STATE:    SOVEREIGNTY  215 

responded  that  there  may  be,  and  in  fact  are,  in- 
stances of  written  constitutions  that  contain  no 
grant  of  amending  power.  Such,  for  example,  is 
the  present  constitution  of  Italy.  In  such  cases  we 
must  say  that  it  is  to  be  considered  as  tacitly  under- 
stood, that  amendment  may  be  made  either  by  the 
ordinary  legislative  method,  or  by  that  same  power 
by  which  the  constitution  was  originally  adopted. 
Where  public  demand  has  wrung  written  instruments 
of  government  from  autocratic  rulers,  it  is  but  natural 
that,  in  the  absence  of  specific  provisions  for  amend- 
ment, this  power  should  be  construed  as  residing  in 
the  legislative  body  which  partakes  of  a  popularly 
representative  character.  Thus,  this  has  been  the 
interpretation  that  has  been  accepted  by  Italian 
jurists.  But,  from  the  legal  standpoint,  it  would 
seem  that  the  more  logical  solution  of  the  problem 
would  be  to  say  that  this  amending  power  is  reserved 
by  the  monarch.  Where  the  origin  of  the  constitution 
is  due  to  a  grant  from  the  ruler,  it  would  seem  that 
the  same  competence  that  enables  him  to  make  such 
a  grant  would  enable  him  to  alter  its  provisions  at 
will. 

But  there  may  be  alleged  the  possibility  of  a  more 
extreme  case  than  the  one  we  have  been  consider- 
ing; namely,  that  of  a  constitution  containing  the 
express  provision  that  it  shall  be  unalterable  for  all 
time.  How  is  amendment  to  be  legally  secured  in 
such  a  case  as  this  ?  Here  we  are  obviously  thrown 
back  upon  the  party  or  parties  by  whom,  and  the 
manner  in  which,  the  constitution  was  itself  adopted. 


216  THE   NATURE   OF  THE   STATE 

We  must  examine  the  nature  of  this  original  act 
of  establishment.  In  those  cases  where  this  has 
been  in  the  nature  of  a  concession  or  grant  by 
a  monarch  previously  unrestricted  in  the  exercise 
of  his  power,  it  is  clear,  as  we  have  already  said, 
that  a  modification  may  be  brought  about  by 
an  exercise  of  the  legal  power  of  such  ruler. 
There  would  be  no  more  difficulty  in  a  monarch 
so  doing,  than  there  is  in  an  ordinary  legislature 
repealing  one  of  its  own  acts  that  it  has  pre- 
viously declared  to  be  unalterable  and  irrepeal- 
able. 

It  is  very  common  to  speak  of  the  written  consti- 
tutions of  Europe  that  have  been  promulgated  by 
monarchs  in  obedience  to  popular  demand,  as  com- 
pacts between  the  Peoples  and  their  respective  sov- 
ereigns. But  this  is  juristically  incorrect.  However 
expressed,  and  whatever  may  have  been  the  actual 
conditions  that  have  necessitated  the  establishment 
of  these  instruments,  they  do  not  have  a  contractual 
character.  The  two  parties  do  not  stand  upon  an 
equal  footing.  The  authority  of  the  Prince  always 
predominates.  It  is  his  will  that  is  contained  in  the 
constitutions,  however  much  that  will  may  actually 
have  been  influenced  by  the  political  exigency  of 
popular  demand. 

When,  however,  we  come  to  the  case  of  a  consti- 
tution adopted  by  a  People  in  a  revolutionary  man- 
ner, that  is,  without  the  consent  or  legal  action  of  the 
political  authority  under  which  such  People  had  been 
previously  living,  we  have  a  problem  to  which  there 


THE  POWER   OF   THE   STATE:   SOVEREIGNTY    /   217 

is  not  such  an  obvious  answer.  We  need  first  of  all 
to  inquire  how  such  a  constitution  itself  obtained  a 
legal  character  in  the  beginning ;  or,  in  fact,  how 
the  constitution  of  any  State,  whether  written  or 
unwritten,  acquires  a  legal  force.  If  a  people  act 
in  an  illegal  or  revolutionary  manner  in  the  erection 
of  a  constitution,  how  do  its  provisions  obtain  a  legal 
force ;  or,  if  action  be  again  called  for,  for  purposes 
of  amendment,  how  are  the  People  to  act  in  a  legal 
manner  ? 

In  answering  this  question,  we  must  anticipate 
somewhat  a  discussion  that  is  shortly  to  follow  re- 
garding the  distinction  between  de  facto  and  de  jure 
governments.  It  will  there  appear  that  the  terms 
de  facto  and  de  jure,  as  applicable  to  governments, 
are  purely  relative.  That  is  to  say,  their  force  de- 
pends upon  the  standpoint  from  which  the  given 
government  is  viewed.  When  a  revolutionary  gov- 
ernment is  termed  illegal,  it  is  such  only  as  viewed 
from  the  standpoint  of  that  political  power  from 
which  its  adherents  have  forcibly  removed  them- 
selves. Viewed,  however,  from  the  standpoint  of 
those  who  favor  the  establishment  of  such  a  political 
power,  it  possesses  a  legal  character.  Its  adherents 
claim  that  a  new  State  has  been  established  and  that 
their  action  is  legally  justified  by  such  State.  In 
other  words.  Sovereignty,  upon  which  all  legality 
depends,  is  itself  a  question  of  fact,  and  not  of 
law.  If,  now,  it  be  asked  by  what  means  were 
established  the  organs  by  which  the  constitution 
was  framed  in  such  a  case  as  we  have  stated,  and 


218  THE   NATURE   OF  THE   STATE 

whence  the  authority  of  such  organs  to  declare  the 
manner  in  which  such  instrument  is  to  be  con- 
sidered as  adopted  and  as  valid,  —  to  this  it  must 
be  responded  that  the  act  was  a  purely  popular 
one.  The  State,  as  has  been  said,  is  in  all  cases 
essentially  popular  in  origin,  resting  upon  a  senti- 
ment of  unity.  Its  establishment  is  not  a  juristic 
act.  Synchronous  with  the  creation  of  a  political 
power,  some  sort  of  governmental  organization  is, 
by  necessity,  established.  Now,  this  original  primi- 
tive organization,  spontaneously  evolved,  as  it  were, 
from  a  popular  source,  we  must  consider  as  due  to 
an  act  of  the  State  organized  for  the  time  being 
upon  a  completely  democratic  basis.  Therefore,  all 
States,  at  the  time  of  their  first  inception,  neces- 
sarily have  a  popular  form  of  governmental  organi- 
zation, and  from  this  popular  governing  body  is 
derived  the  authority  of  particular  persons  or  bodies 
of  persons  to  frame  definite  and  more  permanent 
principles  of  government,  and  to  declare  the  condi- 
tions according  to  which  such  principles  shall  be 
considered  as  legally  adopted. 

Hence,  we  must  conclude,  that  in  those  cases  in 
which  -there  is  the  explicit  assertion  that  the  con- 
stitution shall  not  be  altered,  amendment  is  to  be 
secured  in  the  manner  in  which  the  constitution 
itself  was  originally  adopted  ;  and,  if  the  constitution 
have  a  revolutionary  basis,  and  there  is  a  denial  in  it 
of  any  right  of  amendment,  this  residual  portion  of 
Sovereignty  resides  in  the  people  acting  as  a  demo- 
cratic organ  of  Government.     It  is  to  be  emphasized, 


THE   rOWER   OF   THE   STATE:   SOVEREIGNTY  219 

however,  that,  any  provisions  for  the  amendment  of 
a  constitution  once  established,  the  action  of  the 
sovereign  State  is  henceforth  formally  limited  there- 
by. That  is  to  say,  its  subsequent  action  must 
be  in  conformity  with  such  provisions,  and,  if  they 
become  irksome,  they  must  first  be  amended  or 
repealed  in  the  formal  manner  provided.  The  State 
cannot,  in  other  words,  exercise  any  of  its  powers  in 
other  than  a  legal  manner.  The  State's  will  can  be 
expressed  only  in  the  form  of  law,  and  an  illegal  act 
is  not  an  act  of  the  State.  The  State  may,  indeed, 
so  surround  the  assumption  of  this  or  that  function 
with  leo;al  restrictions  that  when  the  exercise  of  it 
becomes  necessary,  revolutionary,  and  therefore  ille- 
gal, methods  become  an  easier  means  of  obtaming 
them  than  constitutional  ones.  ,  But  when  such 
action  is  had,  and  is  permanently  acquiesced  in  by  the 
People,  it  must  be  juristically  held  that  the  old  State 
has  been  destroyed  and  a  new  State  with  new  and 
additional  governmental  powers  established. 

It  may  seem  that  we  have  followed  to  unnecessary 
length  this  hypothetical  case,  —  one  so  opposed  to 
all  ideas  of  political  expediency  as  to  make  its  occur- 
rence scarcely  possible  in  this  age  at  least,  —  but  it 
has  been  necessary  to  do  this  in  order  to  carry  out 
to  its  logical  proof  the  fundamentally  important 
position  that  the  State  is  not  and  cannot  be  itself 
controlled  (except  formally)  by  constitutional  law. 
Somewhere  within  its  power  must  lie  the  legal  com- 
petence to  express  a  will  that  is  sovereign  and 
therefore  without  limitation. 


220  THE   NATURE   OF  THE   STATE 

Another  way  of  stating  the  fact  that  the  State  is 
not  subject  to  legal  limitation  is  the  assertion  that 
it  cannot  by  law  deprive  itself  beyond  recall  of  any 
portion  of  its  Sovereignty. 

Distinct  from  the  question  of  the  power  of  the 
State  to  alienate  its  Sovereignty  to  another  political 
body,  is  that  of  its  ability  to  decree  its  own  disso- 
lution. Upon  this  point  says  Dicey,  in  the  work 
already  cited,  ''  The  impossibility  of  placing  a  limit 
on  the  exercise  of  Sovereignty  does  not  in  any  way 
prohibit,  either  logically  or  in  matter  of  fact,  the 
abdication  of  Sovereignty.  This  is  worth  observa- 
tion because  a  strange  dogma  is  sometimes  put 
forward,  that  a  sovereign  power,  such  as  the  Par- 
liament of  the  United  Kingdom,  can  never  by  its 
own  act  divest  itself  of  Sovereignty.  This  position 
is,  however,  clearly  untenable.  An  autocrat,  such 
as  the  Russian  Czar,  can  undoubtedly  abdicate ;  but 
Sovereignty,  or  the  possession  of  a  supreme  power  in 
a  state,  whether  it  be  in  the  hands  of  a  Czar  or  of  a 
Parliament,  is  always  one  and  the  same  quality.  If 
the  Czar  can  abdicate,  so  can  Parliament.  To  argue 
or  imply  that  because  Sovereignty  is  not  limitable 
(which  is  true)  it  cannot  be  surrendered  (which  is 
palpably  untrue)  involves  the  confusion  of  two  dis- 
tinct ideas.  It  is  like  arguing  that  because  no  man 
can,  while  he  lives,  give  up,  do  what  he  will,  his 
freedom  of  volition,  so  no  man  can  commit  suicide. 
A  sovereign  power  can  divest  itself  of  authority  in 
two  ways,  and  (it  is  submitted)  in  two  ways  only. 
It  may   simply  put    an   end   to    its   own  existence. 


THE   POWER   OF  THE   STATE:    SOVEREIGNTY         221 

Parliament  could  extinguish  itself  by  legally  dis- 
solving itself  and  leaving  no  means  whereby  a 
subsequent  Parliament  could  be  legally  summoned. 
A  sovereign  again  may  transfer  sovereign  authority 
to  another  person  or  body  of  persons."  ^ 

To  this  argument  we  give  our  full  approval,  though, 
for  the  sake  of  perfect  explicitness,  it  will  be  well, 
perhaps,  again  to  call  attention  to  the  distinction  that 
is  to  be  made  between  Sovereignty  itself  and  the 
person  or  body  of  persons  through  whom  it  is  legally 
exercised.  Where  there  is,  in  fact,  a  legal  transfer  of 
the  power  of  exercising  Sovereignty  from  one  body 
to  another,  such  an  act  is  the  surrendering  of  power 
by  a  particular  governing  body,  but  it  is  not  a  parting 
with  Sovereignty  by  the  State.  Hence  it  is,  as  Dicey 
says,  not  to  be  compared  with  the  power  of  the  State 
to  decree  its  own  dissolution,  nor  to  be  supported  by 
analogy  with  the  control  that  man  has  over  the 
continued  existence  of  his  own  life,  though  without 
the  power,  while  living,  to  limit  his  own  volitional 
powers.  The  State  is  therefore  no  more  able  to 
transfer  its  Sovereignty,  that  is,  its  very  life  and 
personality,  than  a  man  has  the  power  to  transfer 
Ms  life  or  personality. 

But  we  are  not  yet  done  with  the  objections  that 
are  made  to  the  position  that  we  have  assumed  in  this 
chapter.  Criticism  has  been  made  to  the  assertion 
that  no  State,  however  willing,  can  surrender  its  own 
Sovereignty,  or,  if  we  may  use  the  expression,  grant 
away  a  territorial  portion  of  it,  on  the  ground  that 

1  Law  of  the  Constitution,  4th  ed.,  p.  05,  note. 


222  THE   NATUEE   OF  THE   STATE 

it  would  lead  to  the  reductio  ad  ahsurdum  that 
Athens  and  Rome  must  still  be  regarded  as  sover- 
eign and  the  United  States  as  yet  subject  to  Eng- 
land.^ But  this  is  by  no  means  the  logical  result. 
The  United  Colonies  in  America  acquired  Sover- 
eignty when  they  organized  themselves  as  an  inde- 
pendent community.  Their  Sovereignty  did  not  date 
from  the  signing  of  the  treaty  with  England,  but, 
if  any  exact  date  can  be  placed  to  it,  from  the  signing 
of  the  Declaration  of  Independence.^  It  is  true  that 
in  the  treaty  of  Paris  and  Versailles,  in  1783,  Eng- 
land for  the  first  time  conceded  this  independence; 
but  the  mere  fact  that  this  was  done  by  a  treaty 
shows  that  the  United  States  was  already  a  State. 
England  but  formally  acquiesced  in  and  recognized 
a  state  of  affairs  that  had  already  become  an  estab- 
lished fact.  From  the  English  standpoint,  the  action 
of  the  colonies  in  revolting  was  undeniably  an  illegal 
act,  and  it  was  not  made  a  legal  one  by  her  recogni- 
tion of  our  independence.  On  the  other  hand  we  did 
not  need  the  acknowledgment  of  England  in  order  to 
assume  the  character  of  a  sovereign  nation.  Before 
that,  we  had  entered  the  family  of  nations,  and  had 
been  recognized  by  them  as  a  member.     When,  for 

1  "  The  Nature  of  the  Federal  State,"  by  E.  V.  Robinson,  in  Annals 
of  Am.  Acad,  of  Pol.  and  Soc.  Sci.,  May,  1894. 

2  In  Mcllvaine  v.  Coxe's  Lessee,  4  Cr.  212,  the  Supreme  Court  of 
the  United  States  say,  "  That  the  several  States  whicli  compose  this 
Union,  so  far  at  least  as  regards  their  municipal  regulations,  became 
entitled,  from  the  time  when  they  declared  themselves  independent, 
to  all  the  rights  and  powers  of  sovereign  states,  and  that  they  did  not 
derive  them  from  concessions  made  by  the  British  King.  The  treaty  of 
peace  contains  a  recognition  of  their  independence,  not  a  grant  of  it." 


THE   POWER  OF  THE   STATE:   SOVEREIGNTY         223 

example,  in  1778,  France   entered  into  a  treaty  of 
alliance  and  commerce  with  us,  she  did  so  upon  the 
express  declaration  that  "  the  people  of  these  colonies 
were  in  the  public  possession  of  their  independence." 
To   take   another   example:    How   did   Germany 
obtain  her  Sovereignty  over  the  provinces  of  Alsace 
and    Lorraine,    ceded    to    her    at   the   end   of    the 
Franco-Prussian  War?     We  answer  that  it  was  by 
virtue  of  actual  annexation  by  Germany,  and  sub- 
mission on  the  part   of   their   inhabitants   to    such 
annexation;   not   by   virtue    of   the   treaty   of  Ver- 
sailles   in    which    the    transfer   was    acquiesced    in 
by  France.     The  fact  may  be  that  the  inhabitants 
of  these  provinces  never  actively  desired  this  trans- 
ference of  allegiance,  and  even  at  the  present  day 
would  gladly  return  to  France,  but   this   does  not 
affect  the  Sovereignty  of  the  German  Empire  over 
them.     When  it  is  said  that  that  which  gives  birth 
to  the  Nation  and  State  is  the  feeling  of  unity  that 
exists  in  the  People,  it  is  meant  that,  taking  them  as 
a  whole,  this  sentiment  is  sufficiently  strong  to  keep 
them  united  and  make  them  obedient  to  the  ruling 
authorities   that   be;    that   the  General  Will    shall 
support  the  State,  not  that  each  and  every  particular 
inhabitant  or  group  of  inhabitants  shall  freely  accept 
the  State's  authority  as  just  and  proper.    In  fact,  dis- 
affection on  the  part  of  the  people  may  extend,  with- 
out destroying  the  Sovereignty  of  the  State,  to  any 
point  short  of  that  which  will  occasion  and  support 
successful  revolution. 


224  THE  NATURE   OF  THE   STxiTE 

States  de  facto  and  Governments  de  facto  and  de 
jure.  —  A  State  is  not  amenable  to  the  qualifica- 
tion of  de  jure  or  non  de  jure,  because  it  is  not  a 
creature  of  law.  Such  terms  are  applicable  only 
to  government  bodies.  As  we  have  already  several 
times  said,  a  juristic  origin  cannot  be  ascribed  to 
the  State.  An  organized  community  of  men  either 
constitute  or  do  not  constitute  a  State,  according 
to  whether  there  is  or  is  not  to  be  discovered  therein 
a  supreme  will  acting  upon  all  persons  or  other  bodies 
within  its  limits.^ 

This  point  may  seem  sufficiently  obvious,  but  it 
will  scarcely  be  a  waste  of  space  to  quote  from  Green 
a  paragraph  in  which  it  is  philosophically  demon- 
strated with  complete  clearness.  "  But  whether  or 
no,"  says  he,  "in  any  qualified  sense  of  ^  sovereign '  or 
'jus,'  a  sovereign  that  is  not  so  '  dejure'  is  possible, 
once  understand  by  ^  sovereign '  the  determinate  per- 
son or  persons  with  whom  the  ultimate  law-imposing 
and  law-enforcing  power  resides,  and  by  'jus,'  law, 
it  is  then  obviously  a  contradiction  to  speak  of  a 
sovereign  '  de  jure '  as  distinguished  from  one  '  de 
facto.''  The  power  of  the  ultimate  imponent  of  law 
cannot  be  derived  from,  or  limited  by,  law.      The 

*  Thus  Hurd  states  the  problem  as  to  the  character  of  the  national 
government  established  in  1789,  as  depending  upon  "  Whether  each 
or  any  one  of  the  thirteen  original  States  ever,  at  any  moment  after 
their  ceasing  to  be  dependent  as  colonies,  had  exhibited  force  and 
will  as  sustaining,  severally,  the  powers  belonging  to  every  sovereign 
nation,  or  State,  in  that  sense;  or — Whether  it  was  only  by  a  com- 
mon force  and  will  exerted  by  them  as  one  integral  nation  or  State 
that  they  had  claimed  and  sustained  those  powers."  The  Union- 
State,  p.  11. 


THE   POWER   OF   THE   STATE:    SOVEREIGNTY  225 

sovereign  may,  no  doubt,  by  a  legislative  act  of  its 
own,  lay  down  rules  as  to  the  mode  in  which  its  power 
shall  be  exercised,  but  if  it  is  sovereign  in  the  sense 
supposed,  it  must  always  be  open  to  it  to  alter  these 
rules.  There  can  be  no  illegality  in  its  doing  so.  In 
short,  in  whatever  sense  '^jus '  is  derived  from  the 
sovereign,  in  that  sense  no  sovereign  can  hold  his 
power  '  de  jure.'  So  Spinoza  held  that  '  imperium  ' 
was  '  de  jure '  indeed,  but  '  de  jure  naturali '  {^jus 
naturale '  =  natural  power),  which  is  the  same  as 
'  de  jure  divino ' ;  only  powers  exercised  in  subor- 
dination to  '  imperium '  are  ^  de  jure  civ  Hi.'  So 
Hobbes  said  that  there  could  be  no  ^unjust  law.' 
A  law  was  not  a  law  unless  enacted  by  a  sover- 
eign, and  '  the  just '  being  that  to  which  the  sov- 
ereign obliges,  the  sovereign  could  not  enact  the 
unjust,  though  it  might  enact  the  inequitable  and 
the  pernicious,  the  '  inequitable '  presumably  mean- 
ing that  which  conflicts  with  the  law  of  nature,  the 
'  pernicious '  that  which  tends  to  weaken  individuals 
or  society."^ 

The  terms  de  jure  and  non  de  jure  are,  however, 
applicable  to  Governments. 

All  bodies  claiming  political  authority,  possess  or 
not  a  de  jure  character  according  to  whether  or  not 
they  are  established,  represent,  and  are  guided  by 
the  will  of  the  State  into  which  the  individuals,  over 
whom  their  claim  to  authority  extends,  are  organized. 
Thus,  given  a  certain  State,  no  persons  or  bodies 
may  exercise  legal  functions  except  those  included 

1  Philosophical  Works,  Vol.  II.  p.  412. 
Q 


226  THE  NATURE   OF  THE   STATE 

within  the  formal  limits  that  the  laws  provide.  All 
powers  otherwise  exercised  are  not  State  powers  ; 
and,  of  course,  those  exercising  them  do  not,  ad  hoc, 
constitute  parts  of  its  government.  At  the  same  time, 
from  the  standpoint  of  those  who  have  openly  cast 
off  their  allegiance  to  an  existing  State,  and  claim  to 
have  organized  themselves  into  a  new  State,  —  from 
their  standpoint,  —  such  governmental  authorities  as 
they  have  established,  have  a  de  jure  character,  and 
the  old  governmental  machinery  can  only  be  con- 
sidered by  them  as  maintaining  a  de  facto  existence. 
Thus  Rousseau  considered  all  the  governments  of  his 
time  as  having  only  a  de  facto  and  not  a  de  jure  ex- 
istence from  the  fact  of  their  not  being  founded 
upon  the  one  legitimate  basis  of  popular  sovereignty 
as  he  understood  it.  In  the  same  way  the  govern- 
ment of  Cromwell,  from  the  Royalist  standpoint, 
never  obtained  a  de  jure  character ;  any  more  than 
the  present  French  Government  is  held  as  such  by 
Orleanists  and  Legitimists. 

In  the  rules  that  regulate  international  relations, 
however,  there  is  used  the  term  de  facto  State,  and 
it  often  becomes  a  very  important  point  to  determine 
whether  the  conditions  in  particular  instances  are 
such  as  authorize  the  recognition  of  given  organiza- 
tions by  the  family  of  Nations,  as  maintaining  a  de 
facto  existence  as  independent  political  bodies.  This 
arises  from  the  fact  that  the  rules  of  international 
procedure  require  that,  in  contests  between  States, 
certain  international  rights  shall  be  recognized.  It, 
therefore,  frequently  becomes  necessary  to  determine 


THE  POWER  OF  THE   STATE:   SOVEREIGNTY         227 

whether  or  not  such  contesting  bodies  shall  be  enti- 
tled to  these  rights.  The  circumstance  under  which 
this  question  most  frequently  arises  is  in  the  case  of 
revolutions  or  rebellions,  in  which  certain  communi- 
ties of  men  have  openly  separated  themselves  from 
their  former  political  bonds  and  are  claiming  an  in- 
dependent political  existence.  When  these  seceding 
communities  have  obtained  for  themselves  a  certain 
degree  of  stability  and  prospect  of  ultimate  success, 
it  becomes  necessary  for  other  Nations  to  determine 
whether  or  not,  in  their  relations  with  them,  they 
will  recognize  them  as  independent  States ;  that  is, 
as  Sitbjects  of  so-called  international  law.  The  recog- 
nition by  a  neutral  power  of  the  government  of  a 
revolting  people  as  a  State  de  facto,  is  a  proper 
casus  belli  for  the  power  claiming  dominion  over  such 
revolting  country,  if  such  recognition  precedes  the 
exhibition  by  the  newly  formed  government  of  an 
ability  to  maintain  its  independence.  In  our  late 
Civil  "War,  when  English  sentiment  seemed  so 
strongly  to  incline  towards  the  Southern  cause, 
there  was  the  gravest  apprehension  felt  as  to  the 
attitude  that  would  be  taken  by  the  British  Govern- 
ment in  this  connection.  It  is  true  that  the  United 
States  recognized  the  Confederate  Government,  sith 
modo  from  principles  of  humanity,  as  a  State,  to  be 
treated  with  for  the  exchange  and  humane  treatment 
of  prisoners,  and  saw  fit,  among  other  belligerent 
rights,  to  exercise  the  right  of  declaring  a  blockade 
of  the  Southern  ports,  instead  of  interdicting  com- 
merce through  these  ports  by  municipal  regulation. 


228  THE  NATURE   OF  THE   STATE 

Furthermore,  our  courts  have  repeatedly  held  in  par- 
ticular instances  since  the  war  that  the  Confederate 
Governments  possessed  a  de  facto  existence  for 
domestic  purposes.  But  this  has  been  done  from 
principles  of  justice  and  humanity,  and  not  because 
the  Federal  Government  ever  recognized  in  the 
seceding  States  a  status  as  an  independent  Nation, 
and  entitled  as  such  to  full  international  rights. 
Certainly  there  never  was  a  time  at  which  we  would 
not  have  considered  it  equivalent  to  a  declaration  of 
war  on  the  part  of  the  foreign  Nation  that  should 
have  recognized  them  as  such. 

The  fact  that  the  insurgent  States  were  able  to 
establish  a  government  that  had  the  power  of  exer- 
cising coercive  authority  for  several  years  over  a 
large  portion  of  the  Southern  territory,  was  not  suffi- 
cient to  give  to  them  the  status  of  de  facto  States. 
This  was  because  at  no  one  time  did  they  exercise 
the  supreme  authority  without  active  contest  on  the 
part  of  the  United  States,  nor  did  they  ever  prove 
themselves  able  to  maintain  a  permanent  control. 
Thus  the  Confederate  States  were  distinguished  from 
the  de  facto  government  of  England  under  Cromwell, 
under  which,  for  a  while,  the  regularly  constituted 
powers  were  expelled  from  the  seat  of  power,  and 
the  Commonwealth's  own  public  officers  put  in  their 
places,  so  as  to  represent  in  fact  the  Sovereignty  of 
the  Nation.  As  say  the  Supreme  Court  of  the 
United  States,  "  The  Confederate  Government  was 
not  of  this  kind.  It  never  represented  the  Nation ; 
it  never  expelled  the   public   authorities   from   the 


THE  POWER   OF  THE   STATE:    SOVEREIGNTY         229 

country ;  it  never  entered  into  any  treaties,  nor  was 
it  ever  recognized  as  tliat  of  an  independent  power. 
It  collected  an  immense  military  force  and  tempo- 
rarily expelled  the  authorities  of  the  United  States 
from  the  territory  over  which  it  exercised  an  usurped 
dominion;  but  in  that  expulsion  the  United  States 
never  acquiesced  ;  on  the  contrary  they  immediately 
resorted  to  similar  force  to  regain  possession  of  that 
territory  and  re-establish  their  authority,  and  they 
continued  to  use  such  force  until  they  succeeded."  ^ 

The  conclusion  follows  from  all  that  we  have 
said,  that  Sovereignty  being  inalienable,  a  new  State 
can  take  its  origin  only  by  the  entire  withdrawal  of 
the  people  organized  under  it,  from  the  civic  bonds 
in  which  they  have  been  living,  and  the  establish- 
ment then,  by  them,  of  a  new  body  politic.  Not 
until  the  old  State  has  been  destroyed,  either  peace- 
ably or  by  force,  can  the  new  State  take  its  rise.  For 
it  is  obvious  that  a  People  cannot  live  under  two 
sovereign  powers  at  the  same  time ;  that  is,  under 
both  the  old  and  the  new.  Nor,  can  the  new  State 
draw  its  vitality  directly  from  the  old ;  for,  as 
we  have  seen,  the  transference  of  Sovereignty  is 
impossible. 

Whenever  there  is  established  a  new  government, 
whose  powers  are  obtained   through   constitutional 

1  Williams  v.  Briiffy,  6  Otto  176.  See  also  Smith  v.  Stewart,  21 
La.  Annual  67,  and  cases  there  cited.  For  a  resume  of  the  "whole 
topic,  see  The  American  and  Eiiglish  Enajclopcedia  of  Law,  article 
"  Government." 


230  THE   NATUKE   OF  THE   STATE 

means,  no  new  State  is  created,  however  much  its 
powers  may  differ  from  those  exercised  under  the 
old  regime.  There  is  only  an  amendment  of  the 
constitution  of  the  old  State.  It  may  thus  happen 
that  in  one  case  constitutional  amendments  may  be 
so  important  and  radical  as  to  change  entirely  the 
governmental  organization  of  a  State;  and  in  an- 
other instance  a  new  State  may  be  established  by 
revolutionary  means,  whose  powers  and  organization 
may  differ  only  in  the  slightest  degree  from  those  of 
the  old  State.  But  the  essentially  different  juristic 
natures  of  the  two  actions  are  not  to  be  confounded. 
It  is  not  the  amount  of  change,  hut  the  7nanner  in 
which  such  change  is  effected,  that  determines  ivhether 
or  not  a  neiv  hody  j^olitic  is  created. 

That  which  gives  life  to  the  State,  and  maintains 
its  vitality,  is  the  feeling  of  unity  that  binds  together 
the  People.  It  is  indeed  possible,  and,  in  fact, 
is  very  generally  the  case  in  modern  times,  that  in 
the  establishment  of  a  new  State  in  the  place  of 
a  formerly  existing  one,  the  old  political  forms 
and  governmental  machinery  are  utilized  by  the 
People  in  attaining  the  purposes  of  their  new  po- 
litical life.  Furthermore,  it  is  entirely  possible 
that  the  establishment  of  the  new  State  may  be 
declared  by  the  People  in  assemblies  and  through 
organs  that  have  existed  as  a  part  of  the  machin- 
ery of  the  State  that  is  destroyed;  but  in  so  act- 
ing, it  is  the  People  that  act,  and  not  the  old  State 
through  whose  mechanical  organization  they  may 
have  operated.      In  the  United  States,  one   of  the 


THE   rOWER   OF   THE   STATE:   SOVEREIGNTY  231 

means  provided  for  the  ratification  of  constitu- 
tional amendments  is  the  approval  of  three-fourths 
of  the  State  legislatures.  When  so  acting,  how- 
ever, these  legislatures,  though  primarily  the  law- 
making organs  of  the  individual  Commonwealths, 
represent  the  whole  people,  and  act  as  agents  of 
the  central  power. 


CHAPTER  X 

THE  NATURE  OF  THE  COMPOSITE  STATE 

The  facts  that  seem  especially  to  contradict  the 
principles  that  have  been  above  evolved  in  reference 
to  the  subject  of  Sovereignty,  are  those  presented  by 
types  of  Composite,  or  so-called  Federal  States.  In 
these  political  forms  appear  to  be,  and  by  many 
publicists  are  recognized  to  be,  examples  of  States 
with  divided  or  limited  Sovereignty,  of  non-sovereign 
States,  and  of  States  created  by  the  joint  action  of 
other  States.  So  important  in  the  modern  world  has 
become  this  federal  type  of  State  life,  that  it  is  worth 
our  while  to  consider  at  some  little  length  the  prob- 
lems in  political  theory  to  which  it  gives  rise.  Just 
as  in  the  Middle  Ages  the  tendency  was  towards 
feudalism,  and  in  the  fifteenth  and  sixteenth  centuries 
towards  absolutism,  so  at  the  present  time  the  move- 
ment seems  towards  Federalism.  In  Eurone  we  see 
the  federal  empire  of  Germany,  the  dual  empire  of 
Austria-Hungary,  the  dual  kingdom  of  Norway  and 
Sweden,  the  Swiss  Federation,  and  the  more  or  less 
close  unions  between  the  various  nationalities  of  the 
Balkan  Peninsula  and  the  other  powers.  In  South 
America  are  to  be  seen  the  Brazilian  and  other 
Federations ;  in  North  America,  Mexico,  and  the 
Dominion  of  Canada,  with  their  essentially  federal 

232 


THE  NATURE   OF  THE   COMPOSITE  STATE  233 

features,  and,  above  all,  our  own  federal  Union. 
The  drift  towards  federalism  is  also  strongly  ex- 
hibited in  the  English  government  of  Australasia. 
Already  several  of  her  provinces  have  joined  in 
federal  bonds,  and  a  movement  towards  an  imperial 
federation  of  all  the  English  possessions  is  believed  by 
many  to  be  steadily  gaining  ground.  The  strength 
of  the  federal  movement  in  general  depends  upon 
the  means  that  it  aifords  for  satisfying  the  demands 
of  local  or  national  particularism,  and,  at  the  same 
time,  for  obtaining  unity  of  political  action  between 
Peoples  .allied  by  economic,  historical,  or  ethnic 
interests. 

So  difficult  of  classification  and  interpretation 
have  become  many  of  the  phenomena  connected 
with  these  federal  forms,  that  many  writers  have 
been  wont  to  escape  from  their  perplexity  by  con- 
sidering this  type  of  political  life  as  sid  generis,  and 
as  such  to  be  interpreted  by  laws  other  than  those 
that  apply  to  ordinary  forms.  Such  a  conclusion  as 
this  is,  however,  an  obviously  fatal  objection  to  any 
system  of  political  philosophy.  If  a  philosophical 
system  be  correct,  its  laws  must  be  universally 
applicable,  and  this  is  as  true  in  the  field  of 
political  phenomena,  as  it  is  in  other  domains  of 
fact.  It  is  incumbent  upon  us,  therefore,  to  apply 
the  principles  which  we  have  evolved  to  the  federal 
form  of  State  life,  as  well  as  to  other  forms,  and 
thereby  to  demonstrate  that  the  apparent  incongrui- 
ties which  the  former  exhibits  are  apparent  rather 
than  real.     The  success  with  which  this  undertaking 


234  THE   NATURE   OF  THE   STATE 

is  accomplished  will  determine  in  a  large  measure 
the  correctness  of  the  conclusions  which  we  have 
drawn. 

The  problem  of  properly  classifying  and  designat- 
ing the  various  unions  into  which  the  States  of  the 
world  have  at  different  times  entered,  is  one  that  has 
especially  attracted  the  attention  of  German  publi- 
cists. The  most  important  work  in  this  field  is  that 
of  Jellinek,  entitled  Die  Lehre  von  den  Staatenver- 
hindungen,  which  we  have  already  had  occasion  to 
cite.  Other  works  are  those  of  Brie/  Westerkamp^ 
and  Waitz.^  This  subject  is  also  of  course  consid- 
ered by  all  writers  dealing  particularly  with  the 
public  law  of  the  German  Empire.  The  work  of 
Laband"^  is  especially  valuable  in  this  respect.  Those 
American  writers  who  have  dealt  with  the  constitu- 
tional character  of  their  own  States,  have  generally 
limited  themselves  to  a  consideration  of  the  differ- 
ences between  a  "  Federal  State "  and  a  "  Con- 
federacy." ^ 

Jellinek,  in  his  classification  of  unions,  makes  the 
first  division  into  Unorganized  and  Oi^ganized  Unio7is. 

^  Theorie  der  Staatenverhindungen. 
^  Slaatenhund  und  Bundesi^taat. 

*  Das  Wesen  des  Bundesstaat,  contained  in  his  Grundzuge  der 
Politik. 

*  Das  Staatsrecht  des  Deutschen  Reiches. 

^  Professor  A.  B.  Hart  has  a  monograpli  entitled,  "  An  Introduction 
to  the  Study  of  Federal  Government "  (Harvard  Univ.  Historical  Mono- 
graphs, No.  2)  which  is  rich  in  bibliographical  matter.  The  work  is, 
liowever,  descriptive  and  comparative,  rather  than  theoretical.  It 
might  also  be  said  that  the  work  of  the  English  historian  Freeman 
entitled  Federal  Government,  is  limited  to  an  historical  examination 
of  the  Grecian  types. 


THE  NATURE   OF  THE   COMPOSITE   STATE  235 

These  names  serve  to  indicate  the  distinction  that  is 
made  between  the  two  classes.  In  the  first  class  are 
included  instances  in  which  more  or  less  permanent 
relations  between  States  have  been  entered  into  for 
the  regulation  of  certain  mutual  interests,  but  in 
which  no  central  organization  has  been  created. 
Such  common  action  as  is  necessary  in  these  unions 
is  had  through  one  or  all  of  the  governmental  organs 
of  the  individual  States.  Of  course  there  is  not 
created  in  any  of  such  cases  what  would  be  called 
a  composite  State,  even  by  those  publicists  who  use 
the  term  "  non-sovereign  State."  Within  this  cate- 
gory fall  such  types  as  "Alliances"  for  offence  or 
defence,  and  for  the  guarantee  of  particular  rights; 
as,  for  example,  perpetual  neutrality  of  particular 
territories,  etc.  Within  this  class  Jellinek  also 
places  that  type  which  he  terms  the  Staatenstaat, 
or  that  form  of  union  in  which  there  is  a  superior 
and  an  inferior  State  or  States,  the  latter  receiving 
the  orders  from  the  former  as  from  a  foreign  power, 
and  the  citizens  of  the  inferior  States  owing  allegi- 
ance only  to  their  own  State.  The  most  conspicu- 
ous historical  examples  of  this  type  have  been  the 
feudal  States  of  the  Middle  Ages  and  the  old  Ger- 
man Empire.  Of  this  nature  are  also  the  relations 
between  the  Ottoman  Porte  and  some  of  his  Chris- 
tian Provinces ;  as  well  as  the  relation  between  our 
own  State  and  some  of  the  Indian  tribes.  Of  this 
order  is  also  the  relation  of  Egypt  and  Turkey,  of 
Japan  and  some  of  the  Javanese  principalities,  and 
of   Nicaragua   and   the    Mosquito    Indians.      All  of 


236  THE   NATURE   OF  THE   STATE 

the  above  unions  Jellinek  designates  as  unorganized 
unions  of  a  juristic  character  (Nichtorganisirte  Ver- 
hindungen  mit  juristischen  CharaJcter). 

We  may  properly  ask  ourselves,  however,  whether 
these  "  Alliances  "  constitute  in  any  proper  sense  of 
the  word,  unions  of  States.  Every  international 
treaty  provides  for  the  regulation  of  certain  interests 
m  common,  or  according  to  conditions  mutually 
agreed  upon.  In  the  above  mentioned  instances  there 
is  not  the  first  beginning  made  or  step  taken  toward 
the  fusion  of  the  contracting  States.  Certainly,  at 
any  rate,  they  cannot  be  designated  as  unions  of  a 
juristic  character,  for,  as  our  previous  analysis  has 
shown,  treaty  relations  are  not  of  this  character.^ 

Coming  now  to  "  Organized  Unions  "  we  find  es- 
tablished in  them,  as  their  name  imports,  permanent 
central  organs.  They  admit  of  segregation  into 
four  classes,  as  follows :  (1)  International  Adminis- 
trative Unions,  (2)  The  Realunion,  (3)  The  Staaten- 
bund  (Confederacy),  (4)  The  Bundesstaat  (Federal 
State). 

Examples  of  the  first  sub-class  are  combinations 
of  States  for  the  common  regulation  of  particular 
interests  wherein  permanent  administrative  author- 
ities are  created.  Of  this  kind  are  the  commissions 
for  the  regulation  of  navigation  upon  the  rivers  Po 
and  Danube,  and  the  international  Postal  and  Tel- 
egraph Unions.  There  is  the  same  objection  to 
considering  these  as  types  of  unions  of  States,  that 

1  Upon  this  point,  compare  Gareis,  Allgemeines  Staatsrecht,  pp. 
103-5. 


THE   NATUIIE   OF  THE   COMPOSITE   STATE  237 

we  have  made  to  the  whole  of   the  first  class  of 
unorganized  unions  above  considered. 

By  the  term  ''  Realunion  "  is  indicated  by  German 
publicists  that  composite  type  of  State  life  in  which 
there  is  an  intimate  and  lasting  union  entered  into 
between  two  or  more  States,  according  to  which 
there  is  a  common  ruler,  but  a  preservation  of 
the  territorial  divisions,  and  a  recognition  and  pro- 
tection of  the  constitutional  rights  of  each  of  the 
uniting  States.  Thus,  it  is  "  that  form  which  arises 
when  two  or  more  independent  States  unite  for  com- 
mon protection,  according  to  which  one  and  the 
same  physical  person  appears  as  the  representa- 
tive of  the  States'  authority,  and  according  to  which 
no  legal  means  is  provided  for  extending  this  union 
to  other  functions."^  In  other  words  the  essential 
element  of  the  Realunion  is  that  it  is  constitutionally 
provided  that  the  representative  of  the  Sovereignty  of 
the  two  or  more  States  (Repr'dsentationshoheit)  shall 
be  in  one  and  the  same  physical  person.  That  is, 
that  this  connection  shall  obtain  irrespective  of  who 
the  prescribed  qualifications  happen  to  determine 
this  common  ruler  shall  be.  The  most  conspicuous 
examples  of  this  form  of  union  are  those  exhibited 
by  Austria  and  Hungary,  and  Denmark  and  Sweden. 
A  type  very  much  resembling  the  Realunion,  and 
often  confused  with  it,  is  what  is  termed  the  Person- 
alunion.  There  is,  however,  a  clear  distmction  be- 
tween them.     In  the  first  there  exists  a  permanent 

^  Jellinek,  Die  Lehre  von  den  Staatenverhindungen,  p.  215.     See  also 
Gareis,  AUgemeines  Staatsrecht,  pp.  105-6. 


238  THE   NATURE   OF  THE   STATE 

provision  that  the  •  two  States  shall  be  commonly 
represented  by  a  single  sovereign.  In  the  latter, 
community  of  ruler  is  accidental,  and  is  occasioned 
by  one  sovereign  becoming  invested  by  descent  or 
other  casual  circumstance  with  two  or  more  ruler- 
ships.  In  such  cases  the  union  of  course  lasts  only 
durins^  the  reis^ns  of  such  monarchs.  Of  this  charac- 
ter  were  the  relations  for  a  time  between  England 
and  Hanover,  Denmark  and  Schleswig-Holstein, 
Prussia  and  Neurenburg;  and  such  is  the  relation 
that  now  exists  between  Holland  and  Luxemburg. 
In  these  cases  the  ruler  is  to  be  considered  as  pos- 
sessing as  many  political  personalities  as  there  are 
States  under  his  rule.  It  is  thus  proper  to  consider 
each  of  the  members  of  a  Personalunion  as  well 
as  of  the  Realunion  as  having  its  own  ruling  head. 
The  Sovereignty  of  each  of  the  individual  States 
is  preserved.^  They  are  connected  with  each  other 
by  no  juristic  relations,  and  are  thus  but  species 
of  Staatenhunde ;  which  type  we  will  consider  more 
particularly. 

The  two  main  types  of  the  composite  State  are 
the  Confederacy  (Staatenhimd)  and  the  Federal 
State  {Bundesstaat),  and  a  critical  examination  of 
the  nature  of  these  two  forms  will  serve  to  bring  out 
all  the  general  principles  that  are  applicable  in  de- 

1  Thus  says  Jellinek  (op.  cit.  p.  212),  '^  Die  Personalunion  ensteht 
durch  Momente,  welc/ie  keine  Willeneinif/ung  cler  Staaten  voraussetzen 
und  zur  Folge  haheii,  die  Realunion  hingegen  beruht  auf  dem  uhereinstim- 
menden,  geeinigten  Willen  der  Staaten,  welche  die  Fiille  der  Stantxgewalt, 
die  Entscheidung  iiber  die  wichtlgsten  A  ngelegenheiten  der  Staaten  Einer 
naturlichen  Pemoniichkeit  zuweisen." 


THE   NATURE   OF  THE   COMPOSITE   STATE  239 

terinining  the  juristic  form  of  all  kinds  of  political 
unions.  The  necessity  of  this  examination  is  amply 
testified  to  by  the  great  diversity  that  exists  in  the 
views  held  by  different  publicists  upon  the  various 
points  involved.  Thus,  Waitz,  Bluntschli,  Ruttiman,^ 
de  Tocqueville,  and  in  general  American  writers, 
maintain  the  doctrine  of  divided  Sovereignty  in  a 
Federal  State.  As  regards  the  nature  of  our  own 
union,  Wheaton  and  Halleck  and  other  writers 
declare  that  the  international  Sovereignty  of  the 
individual  State  is  destroyed,  but  domestic  Sover- 
eignty retained,  though  it  is  apparent  that  in  taking 
this  view  a  conception  of  Sovereignty  is  taken  that 
makes  of  it  a  mere  collection  of  powers  so  loosely 
related  that  they  may  be  separated  without  loss 
of  real  Sovereignty  to  the  possessor  of  any  part. 
According  to  Twiss,  the  members  of  our  union 
though  not  "independent"  are  yet  "all  sovereign 
States."^  According  to  Calhoun  and  his  school,  they 
are  completely  sovereign ;  while  by  the  opponents  of 
that  school,  they  are  held  as  entirely  devoid  of  this 
character.  As  opposed  to  complete  Sovereignty  either 
of  the  individual  States  or  of  the  national  Govern- 
ment, Brownson  holds  that,  "  while  the  Sovereignty  is 
and  must  be  in  the  States,  it  is  in  the  States  united 
and  not  in  the  States    severally."  ^     "  The  organic 

^  Das  Nordamerikanische  Bundesstaat  verglichen  mit  dem  poUtischen 
Einrichtungen  der  Schiveiz,  I.  Theil  549.  See  also  opinions  of  the 
U.  S.  Supreme  Court  in  5  How.  504  and  588 ;  21  How.  506 ;  13  "WaU. 
397 :  92  U.  S.  542 ;  and  Cooley,  Principles  of  Constitutional  Law,  p.  21. 

2  The  Law  of  Nations  Considered  as  Independent  Political  Com- 
munities.  Vol.  I.  §  23 

^  The  American  Republic,  p.  221. 


240  THE  NATURE   OF  THE  STATE 

American  people  do  not  exist  as  a  consolidated  people 
or  State ;  they  exist  only  as  organized  into  distinct  but 
inseparable  States."^  Bliss,  in  his  work,  comes  flatly 
forth  with  the  assertion  that  a  division  of  the  exer- 
cise of  power  is  at  the  same  time  a  division  of  Sover- 
eignty. "1  only  insist,"  says  he,  "that  in  a  true 
federal  State  upon  any  definition  that  can  make  it 
attach  to  a  people  or  State,  sovereignty  does  not 
exist  in  unity,  —  it  is  divided,  and  in  part  trans- 
ferred." ^ 

Surely,  where  there  is  such  a  lack  of  agreement  as 
above  indicated  between  writers  upon  a  point  of 
such  importance  as  this,  it  will  be  well  w^ortli  our 
while  to  consider  with  some  degree  of  care  the 
conclusions  to  which  the  speculations  in  which  we 
have  thus  far  indulged,  will  lead  us. 

We  shall  find  that  the  determination  of  the  sov- 
ereign or  non-sovereign  character  of  any  political 
body  rests  upon  the  following  principles  which  we 
have  already  stated,  viz. :  — 

1.  That  Sovereignty  signifies  the  exclusive  power 
of  the  State  to  determine  its  own  rights  and  attri- 
butes. 

2.  That  Sovereignty,  being  the  supreme  will  of 
the  State,  is  indivisible  and  inalienable. 

3.  That  all  law  is  expressive  of  the  will  of  the 
State,  and  is  in  essence  a  command  directed  by  a 
political  superior  to  a  political  inferior,  —  from  a 
sovereign  to  a  subject. 

1  The  American  Republic,  p.  245.  ^  Of  Sovereignty,  p.  115. 


THE  NATURE   OF  THE   COMPOSITE   STATE  241 

4.  That  treaties  do  not  possess  a  legal  nature,  and 
are  therefore  not  creative  of  law. 

5.  That  that  which  creates  and  gives  life  and  per- 
sonality to  the  State  is  the  feeling  of  unity  on  the 
part  of  the  people  that  finds  realization  in  the  estab- 
lishment of  the  body  politic.  That,  therefore,  it  is 
impossible  to  ascribe  to  the  State  a  conventional 
origin,  or  one  arising  from  a  compact  between  the 
individuals  composing  it.  That  it  is  not  the  joint 
will  of  contracting  parties,  but  the  higher  will  of 
the  State  itself  which  gives  ultimate  validity  to  all 
political  action. 

6.  That,  as  a  consequence  from  the  above,  a  State 
cannot  be  created  through  the  joint  action  of  two  or 
more  States.  This  is  nothing  more  than  to  say  that 
political  Sovereignty  cannot  rest  upon  a  treaty,  —  a 
treaty  being  the  only  way  in  which  two  or  more 
independent  nationalities  can  enter  into  permanent 
mutual  relations.  The  reasoning;  of  Calhoun  is  irre- 
sistible  that  by  a  treaty  it  is  impossible  to  create  a 
political  power  superior  to  that  of  the  contracting 
parties.  The  same  power  that  enables  States  to  con- 
tract, gives  to  them  the  power  to  withdraw  when 
they  see  fit.  Granting  Calhoun's  premise  that  the 
constitution  of  the  United  States  is  a  creation  of  the 
individual  States,  his  doctrine  regarding  the  nature  of 
our  federal  union  follows  as  a  necessary  logical  con- 
clusion. As  he  truly  says,  "  that  a  State  as  a  part 
to  the  constitutional  compact,  has  a  right  to  secede 
acting  in  the  same  capacity  in  which  it  ratified  the 
Constitution,  cannot,  with  any  show  of  reason,  be 


242  THE  NATURE   OF  THE   STATE 

denied  by  any  one  who  regards  the  Constitution  as 
a  compact.  This  results  necessarily  from  the  nature 
of  the  compact  where  the  parties  to  it  are  sovereign, 
and  of  course  have  no  higher  authority  to  which  to 
appeal."  ^ 

The  impossibility  of  one  State  transferring  its  Sov- 
ereignty to  another,  we  have  already  shown.  How, 
then,  can  a  new  State  be  created  by  the  joint  action 
of  other  States  ?  Though  we  may  not  acquiesce  in 
all  of  Brownson's  views,  we  may  accept  his  reasoning 
upon  this  point,  when  he  says,  "  An  independent 
State,  a  nation,  may,  with  or  without  its  consent, 
lose  its  Sovereignty,  but  only  by  being  merged  in,  or 
subjected  to,  another.  Independent  sovereign  States 
cannot,  by  convention  or  mutual  agreement,  form 
themselves  into  a  single  sovereign  State  or  nation. 
The  compact  or  agreement  is  made  by  the  sovereign 
States,  and  binds  by  virtue  of  the  sovereign  power 
of  each  of  the  contracting  parties.  To  destroy  that 
sovereign  pov/er  would  be  to  annul  the  compact,  and 
render  void  the  agreement.  The  agreement  can  be 
valid  and  binding  only  on  condition  that  each  of  the 
contracting  parties  retains  the  Sovereignty  that  ren- 
dered it  competent  to  enter  into  the  compact ;  and 
States  that  retain  severally  their  Sovereignty  do  not 
form  a  single  State  or  nation.  The  States  in  con- 
vention cannot  become  a  new  and  single  sovereign 
State,  unless  they  lose  their  several  Sovereignty  and 
merge  it  in  the  new  Sovereignty ;  but  this  they  can- 
not do  by  agreement,  because  the  moment  the  parties 

1  Works  of  Calhoun,  \'ol.  I.  p.  300. 


THE  NATURE  OF  THE   COMPOSITE   STATE  243 

to  the  agreement  cease  to  be  sovereign,  the  agree- 
ment on  which  alone  depends  the  new  sovereign 
State  is  vacated  in  like  manner  as  a  contract  is 
vacated  by  the  death  of  the  parties :  —  The  con- 
vention either  of  sovereign  States  or  of  sovereign 
individuals,  with  the  best  will  in  the  world,  can  form 
only  a  compact  or  agreement  between  sovereigns ; 
and  an  agreement  or  compact,  whatever  its  terms  or 
conditions,  is  only  an  alliance,  a  league,  or  a  con- 
federation, which  no  one  can  pretend  is  a  sovereign 
State  or  republic."  ^ 

Applying  these  principles  to  those  cases  in  which 
there  appear  to  be  two  or  more  States  organized 
under  a  common  government  as  regards  the  exercise 
of  certain  of  their  functions,  that  which  first  becomes 
evident  is  that  the  so-called  "Federal-State"  is  a 
misnomer,  if  it  be  meant  by  that  name  to  describe 
a  State  formed  by  a  federation  of  States.  Strictly 
speaking,  the  only  correct  manner  in  which  the 
term  may  be  used,  and  as  it  will  be  employed  in  this 
treatise,  is  to  designate  a  State  in  which  a  very 
considerable  degree  of  administrative  autonomy  is 
given  to  the  several  districts  into  which  the  State's 
territory  is  divided :  not  a  political  type  in  which 
there  are  imperia  in  imperio.  Strictly  speaking, 
there  can  be  no  such  thing  as  a  federal  State.  The 
State  is  by  nature  a  unity,  and  is  characterized  by 
the  possession  of  a  sovereign  political  will  that  is 
of  necessity  a  unity.  Therefore,  all  those  unions, 
in    which    individual    members    still    possess    their 

^  The  American  Republic,  Chap.  IX. 


244  THE  NATURE  OF  THE   STATE 

Sovereignty  and  maintcain  a  continued  existence  as 
States,  must  be  founded  upon  treaty  relations,  for 
in  no  other  way  can  sovereign  States  enter  into 
mutual  relations  witli  each  other.  In  such  cases, 
then,  there  is  created  no  federal  State.  A  central 
Government  may  mdeed  be  created,  but  its  acts 
look  for  their  validity  to  the  authority  of  the  indi- 
vidual States,  and,  when  performed,  must  be  con- 
sidered as  the  separate  acts  of  each  of  the  States. 
Thus  when  a  treaty  is  formed,  accepted  and  ratified 
by  a  so-called  confederate  or  composite  State,  it 
must  be  considered  as  though  such  a  treaty  had  been 
separately  made  by  each  of  the  respective  States  in 
the  union.  In  Norway  and  Sweden  and  in  Austro- 
Hungary  we  have  instances  of  two  States  united 
under  a  common  King,  who  is,  however,  to  be  juris- 
tically  considered  as  two  persons,  and,  when  serving 
in  such  dual  capacity,  his  acts  are  to  be  treated  as  the 
separate  acts  of  each  of  the  kingdoms  he  represents. 

On  the  other  hand,  in  those  unions  where  the 
individual  members  have  lost  the  power  of  them- 
selves finally  determining  their  own  competence  (this 
power  being  possessed  by  the  central  power),  the 
individual  members  are  no  longer  possessed  of  the 
sovereign  power ;  and,  as  thus  deficient,  are  no 
longer  to  be  termed  States  in  the  true  sense  of  the 
word.  The  Union  is  thus  the  only  real  State,  and  its 
members,  not  being  States  at  all,  the  term  "  Federal 
State  "  is  not  strictly  applicable. 

There  is  thus  no  middle  ground.  Sovereignty  is 
indivisible,  and  either  the  central  power  is  sovereign 


THE   NATURE   OF  THE   COMPOSITE   STATE  245 

and  the  individual  members  not,  or  vice  versa.  In 
this  refusal  to  designate  as  States  those  political 
bodies  that  do  not  possess  the  sovereign  power,  and 
thus  to  consider  the  expression  "non-sovereign  State" 
a  contradictio  in  adjecto,  the  author  is  supported  by 
the  recent  writings  of  Professor  Burgess  and,  im- 
pliedly, Professor  Goodnow.^ 

Commenting  upon  Laband's  Staatsrecht  des 
Deictschen  Heiches,  wherein  the  opposing  view  is 
taken.  Professor  Burgess  says  :  — 

"The  learned  author  betrays  much  anxiety  to  preserve  to 
the  separate  States  the  character  of  real  states,  while  he 
denies  to  them  the  possession  of  any  sovereign  power.  The 
jurist  comes  again  to  the  front,  and  rescues  the  State  from 
the  category  of  organizations  having  only  derived  powers  by 
the  proposition  that  the  distinguishing  characteristic  of  the 
state  in  general  is  not  sovereignty,  but  only  the  power  to  com- 
mand and  compel  obedience  to  its  commands  from  the  free 
subjects  of  the  state.  It  seems  to  me  that  his  distinction 
will  not  hold.  If  this  power  to  command  and  to  compel 
obedience  be  underived  and  independent,  then  it  is  sover- 
eignty pure  and  simple.  If,  on  the  other  hand,  it  be  in  any 
sense  derivative,  then  the  criterion  of  distinction  which  Dr. 
Laband  sets  up  between  the  relation  of  the  states  to  the 
union  and  that  of  the  municipal  divisions  of  the  state  to 
the  state  largely  breaks  down,  since  these  municipal  divisions 
have  also  the  power  to  command  and  compel  obedience  to 
their  commands  from  the  free  subjects  of  the  state,  and  in 
their  case  this  is  clearly  a  vested  power.  If  sovereignty 
in  the  federal  system  be  exclusively  in  the  union,  then  it 
seems  to  me  that  this  makes  the  union  the  only  real  state, 
and  that  the  only  distinction  which  remains  between  the 
separate   states  and  the  municipalities  lies  in  the  fact  that 

^  Comparative  Constitutional  Law. 


246  THE  NATURE   OF   THE   STATE 

while  the  municipalities  derive  their  authority  from  the  states 
in  a  positive  and  definite  manner,  the  states  derive  their 
power  from  the  union  in  a  permissive  and  general  manner. 
To  be  completely  scientific,  then,  in  our  nomenclature  and 
emancipate  ourselves  completely  from  the  power  of  customary 
phrases,  we  should  give  the  name  state  only  to  the  union  and 
find  some  other  term  to  designate  its  members.  In  America 
we  have  already  the  suitable  title,  '  commomvealth.'  "  ^ 

The  propriety  of  terming  certain  non-sovereign 
political  bodies  States,  probably  finds  its  best  argu- 
ment from  the  pen  of  the  eminent  Austrian  publicist, 
whom  we  have  already  so  often  cited,  Dr.  Georg 
Jellinek.  To  maintain  this  position,  however,  Jel- 
linek  is  required  to  take  a  position  that  certainly 
renders  indistinct  the  line  of  demarkation  between 
"  States,"  and  such  other  political  bodies,  as  admin- 
istrative districts.  It  will  be  remembered  that  he 
has  already  distinguished  the  State  by  its  juristic 
quality  of  setting  to  itself  its  own  legal  rights. 
In  order  now  to  detect  this  distinguishing  quality 
in  non-sovereign  bodies,  he  says,  "  It  is  not  essen- 
tial to  the  conception  of  one's  own  right,  that  it 
should  have  arisen  in  the  person  of  its  possessor; 
furthermore,  it  is  not  necessary  that  it  should  be 
such  as  cannot  be  again  withdrawn  against  its 
own  will.  .  .  .  The  essence  of  one's  own  right 
consists  neither  in  its  originality  nor  in  the  impos- 
sibility of  its  being  withdrawn.  Its  specific  char- 
acteristic is  solely  and  entirely  that  the  one  to 
whom   it   belongs   is   legally   unanswerable   for   its 

1  Pol  Scl  Quar.  III.  No.  1,  p.  128. 


THE   NATUUE   OF   THE   COMPOSITE   STATE  247 

exercise.     By  '  one's   own   right '  is  meant  a  right 
that  is  subject  to  no  legal  control."  ^ 

It  is  the  possession  of  this  independence  of  action 
as  to  certain  matters,  continues  Jellinek,  that  dis- 
tinguishes the  non-sovereign  State  on  the  one  hand 
from  the  purely  administrative  body,  which  possesses 
it  as  to  none,  and,  on  the  other  hand,  from  the  sover- 
eign State,  which  possesses  it  as  to  all.  In  the  non- 
sovereign  State  he  holds  that  an  independent  will 
may  sometimes  be  expressed,  while  in  the  adminis- 
trative unit,  its  functions  are  exhausted  in  the  execu- 
tion of  the  will  of  another.  But  discretionary  powers 
are  often,  and,  in  most  cases,  necessarily,  given  to 
administrative  organs,  and  in  the  exercise  of  such 
discretion,  it  is  difficult  to  see  why  an  independent 
will  (according  to  Jellinek' s  definition  of  one's  own 
will)  is  not  as  much  exerted  as  when  the  so-called 
non-sovereign  State  employs  any  of  its  powers.  As 
a  matter  of  fact,  however,  we  hold  the  statement  to 
be  paradoxical  that  the  essence  of  one's  own  will 
consists  neither  in  its  having  risen  in  the  person  by 
whom  it  is  exercised,  nor  in  the  impossibility  of  its 
being  withdrawn  at  the  will  of  another.  It  would 
seem,  then,  that  in  distinguishing  between  the  non- 
sovereign  State  and  the  administrative  body,  Jellinek 
can  only  mean  that,  in  the  one  case,  the  sovereign 
State  can  only  prevent  the  non-sovereign  State  from 
exercising  powers  not  constitutionally  granted  it,  and 
if  it  be  desired  to  alter  those  powers  can  only  do  so  by 
formal  constitutional  amendment ;  while  in  the  other 

1  Die  Lehre  von  Staatenverbindungen,  pp.  41-2. 


248  THE  NATURE   OF  THE   STATE 

case,  the  acts  of  the  mmor  body  may  be  annulled  by 
ordinary  statute  or  executive  action  on  the  part  of 
the  sovereign  body.  That  this  is,  at  most,  only  a 
formal  distinction,  our  discussion  of  the  essential 
likeness  between  ordinary  and  constitutional  law 
must  have  made  plain.  In  both  cases  the  legal 
competence  of  the  inferior  is  determined  by  the  will 
of  the  superior  body,  though  a  greater  degree  of 
formality  surrounds  the  alteration  of  such  compe- 
tence in  the  one  case,  than  in  the  other. 

If  it  were  true  that  in  the  operation  of  a  sovereign 
upon  a  non-sovereign  body,  the  sovereign  body  had 
only  the  power  of  preventing  the  non-sovereign  body 
from  exceeding  its  constitutional  powers,  there  might 
be  some  warrant  for  claiming  an  essential  distinction 
between  such  a  non-sovereign  political  body  and  a 
mere  administrative  district.  But,  as  a  matter  of 
fact,  the  sovereign  State  always  and  necessarily 
possesses,  in  addition  to  this  negative  and  prohibi- 
tive power,  the  ability  to  alter  at  will  the  legal  com- 
petence of  the  subordinate  body,  even  to  the  extent 
of  utterly  destroying  it.  As  Jellinek  himself  says 
in  another  and  later  work,  "  The  Sovereignty  of  the 
superior  State  as  contrasted  with  the  non-sovereign 
State,  appears  in  three  ways  :  first,  in  a  negative 
control  by  it  of  the  activities  of  the  latter ;  second, 
in  the  power  of  the  sovereign  State  to  use  the 
non-sovereign  State  for  its  own  ends,  be  it  as  the 
direct  object  of  its  will  or  as  a  relatively  indepen- 
dent member  of  a  federal  union ;  thirdly,  that  the 
sovereign  State  has  at  all  times  the  right  to  draw 


THE  NATURE   OF   THE   COMPOSITE   STATE  249 

to  itself  in  a  constitutional  manner  the  highest 
rights  belonging  to  the  non-sovereign  State.  The 
existence  of  the  non-sovereign  State  as  a  State  is 
therefore  itself  determined  by  the  sovereign  will  of 
the  supreme  State.  The  sovereign  State  can  exploit 
the  non-sovereign  State,  to  an  extent  to  which  no 
formal  a  j^rioin  legal  limit  can  be  set."  ^ 

Professor  Wilson,  who  accepts  Jellinek's  reason- 
ing upon  this  point,  says,  "In  the  federal  State, 
self-determination  with  respect  to  their  law  as  a 
whole,  has  been  lost  by  the  member  States.  They 
cannot  extend,  they  cannot  even  determine,  their 
own  powers  conclusively  without  appeal  to  the 
federal  authorities."  But,  he  continues,  '^  They  are 
still  States  because  their  powers  are  original  and 
inherent,  not  derivative ;  because  their  political 
rights  are  not  also  legal  duties;  and  because  they 
can  apply  to  their  commands  the  full  imperative 
sanctions  of  law.  But  their  sphere  is  limited  by 
the  presiding  and  sovereign  powers  of  a  State  super- 
ordinated  to  them,  the  extent  of  whose  authority 
is  determined  under  constitutional  forms  and  guar- 
antees, by  itself."  ^ 

"  Their  powers  are  original,"  he  says.  But  are 
they  ?  If  the  States  have  their  status  as  political 
bodies  only  in  the  Union,  as  Lincoln  saj's,  in  what 
sense  can  their  powers  be  said  to  be  original,  except 
in   a  historical   sense,   as   related   to    the    time    at 

^  Gesetz  und  Verordnunfj,  p.  203. 

^  An  Old  Master  and  Other  Essays,  chapter  on  "Political  Sover- 
eignty," pp.  93-4. 


250  THE  NATURE   OF  THE   STATE 

whicli  they  were  independent  States,  if  ever  they 
were  ?  In  the  juristic  sense,  the  legal  competence  of 
the  members  of  the  composite  State  is  derived  from 
the  federal  constitution.^  Secondly,  Professor  Wilson 
says,  they  are  States,  "  because  their  political  rights 
are  not  also  legal  duties."  If  I  understand  this,  it 
is  meant  that  to  a  very  great  extent  the  exercise,  or 
non-exercise,  or  the  manner  of  exercise  of  their 
powers  is  left  to  their  own  discretion.  But  is  not 
this  true  as  well,  to  a  considerable  extent  at  least, 
of  such  bodies  as  cities  and  counties,  which  all  would 
concede  to  be  merely  administrative  units  ?  Finally, 
says  he,  these  non-sovereign  bodies  are  States  be- 
cause, "  they  can  apply  the  full  imperative  sanctions 
of  law."  In  other  words,  that  all  rules  of  conduct 
promulgated  by  them  within  their  legal  compe- 
tence are  valid  as  laws.  But  this  is  no  less  true 
of  all  administrative  bodies. 

The  conclusion,  then,  seems  irresistible  that,  from 
a  juristic  standpoint,  no  fundamental  distinction  can 
be  drawn  between  non-sovereign  members  of  the 
union  and  their  administrative  units.  What  differ- 
ence there  is,  aside  from  historical  associations,  is  one 
of  degree  ;  that  is,  as  to  scope  of  powers  and  the 
ease  with  which  the  superordinated  power  may  alter 
this  competence. 

Moreover,  as  a  matter  of  fact,  in  several  of  our 
Commonwealths,  various  of  their  urban  districts  are 

'  In  what  sense,  it  may  be  asked,  can  those  present  members  of 
our  Union,  which  have  been  admitted  since  1789,  be  said  to  have 
possessed  "original"  powers? 


THE  NATURE   OF   THE   COMPOSITE   STATE  251 

protected  in  their  administrative  competences  by 
provisions  in  the  constitutions  of  their  respective 
Commonwealths.  This  is  true  in  more  than  twenty- 
States.^ 

But  do  we,  for  this  reason,  consider  such  protected 
districts  any  less  purely  administrative  units,  or 
to  be  distinguished  in  specific  character  from  other 
less  favored  towns  and  counties  ?  Did  not  Patrick 
Henry  himself  declare  to  his  constituents  at  the 
time  of  the  "  Virginia  and  Kentucky  Resolutions  " 
that  Virginia  had  put  forth  a  false  doctrine,  and 
compare  her  position  in  the  Union  with  that  of 
the  County  of  Charlotte  in  the  Commonwealth  of 
Virginia,  and  ask  whether  a  county  had  the  right 
to  dispute  the  authority  of  Commonwealth  law  ? 

It  is  fully  recognized  by  the  writer  of  this  treatise 
that,  when  it  is  possible,  the  use  of  terms  in  scientific 
treatises  should  conform  as  nearly  as  possible  to  that 
given  them  in  common  use.  In  thus  refusing  to 
dignify  by  the  name  of  "  State "  any  political 
bodies  not  possessed  of  the  sovereign  power,  he  is 
aware  that  he  is  running  counter  to  what  general 
use  has  dictated.  At  the  same  time,  if  any  depart- 
ment of  speculative  inquiry  is  to  make  progress,  it 
is  essential  tha,t  its  terms  be  reduced  to  the  utmost 
exactness  and  definiteness,  and  this  cannot  be  done 
by  accepting  in  all  cases   popular    definitions.      In 

1  Commenting  upon  this  fact,  Professor  Burgess  says:  "This  is  a 
most  serious  question.  It  demonstrates  the  fact  that  the  government 
of  the  Commonwealth  has  ceased  to  be,  in  many  respects,  the  natural 
local  government."  Article  "The  American  Commonwealth,"  in  Pol. 
Sci.  Quar.  Vol.  I.  Xo.  1. 


252  THE   NATURE   OF  THE   STATE 

the  case  in  question  he  believes  the  inconvenience 
to  be  felt  by  narrowing  the  common  meaning  of  the 
term  "  State  "  is  more  than  compensated  for  by  the 
increased  definiteness  thereby  obtained.  The  use  of 
the  looser  meaning  obscures  the  analysis  of  politi- 
cal forms,  and  renders  indistinct  the  line  of  de- 
markation  between  the  State  and  administrative 
bodies  —  a  distinction  that  it  is  of  the  greatest  im- 
portance to  make  as  clear  as  possible,  and  to  make 
which,  indeed,  has  been  one  of  the  chief  purposes 
of  this  chapter. 

But  even  were  we  to  accept  the  position  of 
Jellinek  and  others  who  take  the  same  view,  the 
term  "State,"  as  they  define  it,  cannot  be  so 
applied  as  to  harmonize  in  all  cases  with  the  loose 
use  made  of  it  in  popular  speech.  Jellinek,  while 
maintaining  the  propriety  of  terming  as  States 
the  individual  members  of  the  so-called  Federal 
State,  is  yet  forced  to  maintain  that  the  Dominion 
of  Canada  cannot  properly  be  so  designated;  and 
this,  notwithstanding  the  comparatively  slight  con- 
trol exercised  by  England  over  its  action,  —  a 
control  that  does  not  compare  in  amount  and 
importance  with  that  exercised  by  the  general  gov- 
ernment of  the  United  States  over  the  so-called 
individual  States.  A  definition  that  leads  to  such  a 
conclusion  as  this  cannot,  therefore,  be  said  to  pos- 
sess even  the  advantage  of  comporting  with  popular 
usage.  The  "Home  Rule"  bill  proposed  by  Glad- 
stone in  1886,  had  it  become  a  law,  would  have  given 
to  Ireland  a  wider  scope  of  powers  than  that  at  pres- 


THE  NATURE   OF  THE   COMPOSITE   STATE  253 

ent  exercised  by  the  members  of  our  Union.  But 
it  can  scarcely  be  maintained  that  under  such  a 
regime  Ireland  would  have  been  entitled  to  be 
termed  a  "State."  It  is  very  true  that  to  ourselves 
the  stricter  use  of  the  word  "  State  "  seems  at  first 
particularly  strange,  but  this  is  due  to  the  histor- 
ical connections  that  centre  around  our  individual 
"Commonwealths"  (as  Burgess  would  call  them). 
This  disinclination  to  refuse  to  them  the  dignity 
of  the  title  they  have  so  long  enjoyed,  will  only 
disappear  with  the  advance  of  that  sense  of  national 
unity  that  has  made  such  strides  since  the  late  war. 
It  is  a  characteristic  of  all  phenomena  of  life,  for 
names  to  continue  in  use  long  after  they  have  been 
rendered  meaningless  by  the  change  in  character  of 
the  objects  to  which  they  relate ;  just  as  in  England, 
the  Queen  is  still  termed  "Queen  by  the  grace  of 
God,"  although  the  idea  of  a  divine  right  of  rulers 
originally  signified  by  this  phrase,  has  long  since 
disappeared ;  and  the  "  Treasury  Board "  has  long 
been  a  "  Board  "  in  name  only. 

But  words  cannot  change  legal  facts,  and  in  a 
scientific  discussion  they  must  be  held  to  their 
strict  meaning. 

Summarizing,  then,  the  conclusions  that  we  have 
thus  far  reached  regarding  the  nature  of  the  com- 
posite State,  we  may  state  them  as  follows  :  In 
the  Federal  State  a  true  central  State  is  created, 
the  several  units  are  legally  and  constitutionally 
united,  and  Sovereignty  —  the  power  of  ultimately 
determining  its  own   legal  competence  —  resides  in 


254  THE   NATURE   OF   THE   STATE 

the  federal  body.  In  the  Confederacy,  on  the 
other  hand,  the  individual  States  retain  their  char- 
acter as  States,  and  their  relations  to  each  other 
are  of  an  international  or  treaty  character.  Conse- 
quently, no  central  State  is  created,  and  Sovereignty 
lies  wholly  within  such  individual  political  units. 
What  union  there  is  in  the  Confederacy,  is  the  crea- 
tion of  the  wills  of  the  individual  States.  In  a  Fed- 
eral State,  on  the  other  hand,  its  foundation  rests  in 
itself.  It  is  created  by  the  people  as  a  whole,  and  the 
so-called  individual  States,  or,  as  we  prefer  to  term 
them,  "Commonwealths,"  are  creations  of  its  will. 
This  is  true  whatever  may  have  been  the  historical 
steps  by  which  the  Federal  State  has  been  created. 
From  this  standpoint,  then,  we  are  to  consider  the 
citizens  of  a  Federal  State  as  first  divesting  them- 
selves of  their  old  State  Sovereignties,  and  then,  as 
a  People,  establishing  a  national  Federal  State. 
These  two  volitional  acts  may  be  synchronous  and 
made  apparent  by  a  single  outward  act,  viz.,  the 
establishment  of  a  federal  control,  but  they  are 
distinct  acts  from  a  political  standpoint.  The  ap- 
parent continued  existence  in  the  Federal  State  of 
what  were  formerly  independent  political  bodies,  is 
not  real.  Such  bodies  politic  are  destroyed  when 
their  citizens  transfer  their  allegiance  to  the  cen- 
tral power.  They  are  recreated  as  Commonwealths 
by  the  federal  constitution.  They  are  thus  creations 
of  the  Federal  State,  and,  as  Lincoln  said  in  his  first 
message  to  Congress,  "  The  States  have  their  status 
in  the  Union  and  they  have   no  other  legal  status. 


THE   NATURE   OF   THE    COMPOSITE   STATE  255 

The  Union  is  older  than  any  of  the  States,  and  in 
fact  created  them  as  States."  ^ 

Thus,  if  we  take  the  position  that  a  national  State 
was  created  by  the  American  people  in  1789,  we 
must  consider  them  to  have  become  a  united  People 
before  that  time  and  to  have  destroyed  their  former 
individual  States  when  they  established  the  present 
Federal  State.  This  being  so,  the  fact  that  the  con- 
stitution was  adopted  by  conventions  convening  in 
what  had  formerly  been  the  several  States,  must  be 
interpreted  as  meaning  merely  that  a  united  People 
saw  fit,  for  the  sake  of  convenience  and  expediency, 
to  utilize  existing  governmental  machinery  and  ter- 
ritorial divisions  for  the  formal  adoption  of  its  new 

1  Bearing  upon  this  point,  as  well  as  upon  the  comparison  which 
we  have  before  made  of  our  individual  Commonwealths  with  their 
own  subdivisions,  may  be  cited  the  following  quotation  from  an 
address  by  Lincoln  to  the  Legislature  at  Indianapolis,  February  12, 
1861.  "In  what  consists  the  special  sacredness  of  a  State?  I  speak 
not  of  the  position  assigned  to  a  State  in  the  Union  by  the  Constitu- 
tion; for  that,  by  the  bond,  we  all  recognize.  That  position,  how- 
ever, a  State  cannot  carry  out  of  the  Union  with  it.  I  speak  of  that 
assumed  primary  right  of  a  State  to  rule  all  which  is  less  than  itself, 
and  ruin  all  which  is  larger  than  itself.  If  a  State  and  a  county  in  a 
given  case  should  be  equal  in  extent  and  territory,  and  equal  in  num- 
ber of  inhabitants,  in  what,  as  a  matter  of  principle,  is  the  State 
better  than  the  county  ?  Would  an  exchange  of  names  be  an  exchange 
of  rights  upon  principle?  On  what  rightful  principle  may  a  State, 
being  no  more  than  one-fiftieth  part  of  the  nation  in  soil  and  popula- 
tion, break  up  the  nation,  and  then  coerce  a  proportionately  larger 
subdivision  of  itself  in  the  most  arbitrary  way  ?  What  mysterious 
right  to  play  tyrant  is  conferred  on  a  district  or  county,  with  its 
people,  by  merely  calling  it  a  State  ?  "  From  what  has  been  said  in 
this  chapter  it  would  follow  that  ascription  of  "limited  sovereignty" 
to  the  members  of  our  Union  by  American  courts  and  Congi-ess  is, 
strictly  speaking,  incorrect.  A  more  proper  phrase  would  be  that 
of  "limited  legal  competence." 


256  THE   NATURE  OE  THE   STATE 

constitution.     And  that   therefore  such  conventions 
were,  in  fact,  Federal  and  not  State  organs. 

Austin,  in  his  lectures  on  the  Province  of  JmHsjjru- 
dence  Determined,  has  some  remarks  upon  the  nature 
of  the  so-called  non-sovereign  State  as  well  as  upon 
the  distinctions  we  have  just  been  making,  that  will 
well  bear  quotation.  "  Now  I  think  it  will  appear  on 
analysis,"  says  he,  "that  every  government  deemed 
imperfectly  supreme  is  really  in  one  or  another  of 
the  three  following  predicaments.  It  is  perfectly 
subject  to  that  other  government  in  relation  to 
which  it  is  deemed  imperfectly  supreme :  Or  it  is 
perfectly  independent  of  the  other,  and  therefore  is 
of  itself  a  truly  sovereign  government:  Or  in  its 
own  community  it  is  jointly  sovereign  with  the 
other,  and  is  tlierefore  a  constituent  member  of  a 
government  supreme  and  independent.  And  if 
every  government  deemed  imperfectly  supreme  be 
really  in  one  or  another  of  the  three  foregoing  pre- 
dicaments, there  is  no  such  political  mongrel  as  a 
government  sovereign  and  subject.  —  1.  The  politi- 
cal powers  of  the  government  deemed  imperfectly 
supreme,  may  be  exercised  entirely  and  habitually  at 
the  pleasure  and  bidding  of  the  other.  On  which 
supposition,  its  so-called  half  sovereignty  is  merely 
nominal  and  illusive.  It  is  perfectly  subject  to  the 
other  government,  though  that  its  perfect  subjection 
may  be  imperfect  in  extent.  For  example:  Al- 
though, in  its  own  name,  and  as  of  its  own  discretion, 
it  makes  war  or  peace,  its  power  of  making  either  is 
merely  nominal  and  illusive,  if  the  power  be  exercised 


THE  NATUEE   OF  THE  COMPOSITE   STATE  257 

habitually  at  the  bidding  of  the  other  government. — 
2.  The  political  powers  exercised  by  the  other  govern- 
ment over  the  political  society  deemed  imperfectly 
independent,  may  be  exercised  through  the  permis- 
sion, or  through  the  authority,  of  the  government 
deemed  imperfectly  supreme.  On  which  supposition, 
the  government  deemed  imperfectly  supreme  is  of 
itself  a  truly  sovereign  government:  those  powers 
being  legal  rights  over  its  own  subjects,  which  it 
grants  expressly  or  tacitly  to  another  sovereign 
government.  .  .  .  —  3.  The  political  powers  of  the 
government  deemed  imperfectly  supreme,  may  not  be 
exercised  entirely  and  habitually  at  the  pleasure  and 
bidding  of  the  other :  but  yet  its  independence  of  the 
other  may  not  be  so  complete,  that  the  political  pow- 
ers exercised  by  the  other  over  the  political  society 
deemed  imperfectly  independent,  are  merely  exer- 
cised through  its  permission  or  authority.  .  .  .  But 
on  the  supposition  which  I  have  now  stated  and  ex- 
emplified, the  sovereignty  of  the  society  deemed  im- 
perfectly independent  resides  in  the  government 
deemed  imperfectly  supreme  together  with  the  other 
government :  and,  consequently,  the  government 
deemed  imperfectly  supreme  is  properly  a  constitu- 
ent member  of  a  government  supreme  and  indepen- 
dent. The  supreme  government  of  the  society 
deemed  imperfectly  independent,  is  one  of  the  mfin- 
ite  forms  of  supreme  government  by  a  number,  which 
result  from  the  infinite  modes  wherein  the  sovereign 
number  may  share  the  sovereign  powers."  ^ 

1  pp.  211-13. 


258  THE  NATURE   OF  THE   STATE 

"  A  composite  (federal)  state,  and  a  system  of  con- 
federated states,  are  broadly  distinguished  by  the 
following  difference.  In  the  case  of  a  composite 
state,  the  several  united  societies  are  one  indepen- 
dent society,  or  are  severally  subject  to  one  sovereign 
body ;  which,  through  its  minister,  the  general  gov- 
ernment, and  through  its  members  and  ministers  the 
several  united  governments,  is  habitually  and  gen- 
erally obeyed  in  each  of  the  united  societies,  and 
also  in  the  larger  society  arising  from  the  union  of 
all.  In  the  case  of  a  system  of  confederate  states, 
the  several  compacted  societies  are  not  one  society, 
and  are  not  subject  to  a  common  sovereign :  or 
(changing  the  phrase)  each  of  the  several  societies 
is  an  independent  and  political  society,  and  each  of 
their  several  governments  is  properl}^  sovereign  or 
supreme.  Though  the  aggregate  of  the  several 
governments  was  the  framer  of  the  federal  compact, 
and  may  subsequently  pass  resolutions  concerning 
the  entire  confederacy,  neither  the  terms  of  that 
compact,  nor  such  subsequent  resolutions,  are  en- 
forced in  any  of  the  societies  by  the  authority  of 
that  aggregate  body.  To  each  of  the  confederated 
governments,  these  terms  and  resolutions  are  merely 
articles  of  agreement  which  it  spontaneously  adopts ; 
and  they  owe  their  legal  effect,  in  its  own  political 
society,  to  laws  and  other  commands  which  it  makes 
or  fashions  upon  them,  and  which,  of  its  own  au- 
thority, it  addresses  to  its  own  subjects.  In  short, 
a  system  of  confederated  states  is  not  essentially 
different  from  a  number  of  independent  governments 


THE  NATURE   OF  THE  COMPOSITE   STATE  259 

connected  by  an  ordinary  alliance.  And  whore  in- 
dependent governments  are  connected  by  an  ordi- 
nary alliance,  none  of  the  allied  governments  is 
subject  to  the  allied  governments  considered  as  an 
aggregate  body:  though  each  of  the  allied  govern- 
ments adopts  the  terms  of  the  alliance,  and  com- 
monly enforces  those  terms,  by  laws  and  commands 
of  its  own,  in  its  own  independent  community. 
Indeed,  a  system  of  confederated  states,  and  a  num- 
ber of  independent  governments  connected  by  an 
ordinary  alliance,  cannot  be  distinguished  precisely 
through  general  or  abstract  expressions.  So  long  as 
we  abide  in  general  expressions,  we  can  only  affirm 
generally  and  vaguely,  that  the  compact  of  the 
former  is  intended  to  be  permanent,  whilst  the  alli- 
ance of  the  latter  is  commonly  intended  to  be  tem- 
porary: and  that  the  ends  or  purposes  which  are 
embraced  by  the  compact,  are  commonly  more  nu- 
merous, and  are  commonly  more  complicated,  than 
those  which  the  alliance  contemplates."  ^ 

In  a  Federal  or  Composite  State  the  right  of  seces- 
sion on  the  part  of  the  individual  Commonwealths  is 
of  course  excluded.  The  Commonwealths  have  their 
sole  political  status  in  the  union,  and  can  therefore 
have  none  outside  of  it.  This  doctrine  has  been 
repeatedly  affirmed  by  the  Supreme  Court  of  the 
United  States,  it  being  held  by  that  body  that 
the  seceding  Southern  Commonwealths  never  were 
legally  out  of  the  Union,  and  hence  that  no  legal 
validity  could  be  attached  to  any  of  the  acts  of  their 

1  The  Province  of  Jurisprudence  Determined,  ed.  ISGl,  pp.  223-1. 


260  THE  NATURE   OF  TEE   STATE 

legislatures  that  were  in  any  wise  opposed  to  their 
oblisfations  to  the  federal  constitution. 

The  analysis  of  the  Federal  State  as  thus  far  con- 
ducted enables  us,  by  way  of  negative  criticism,  to 
point  out  the  invalidity  of  the  following  criteria  that 
had  been  variously  applied  in  distinguishing  the 
Staatenbund  and  Bundesstaat. 

First,  the  distinction  does  not  lie  in  the  amount 
of  powers  actually  vested  in  the  central  government, 
as  compared  with  those  retained  by  the  individual 
Commonwealths.  As  long  as  the  governments  of  the 
individual  members  of  the  union  are  considered  but 
as  parts  of  the  central  government,  no  essential  dis- 
tinction can  arise  regarding  the  distribution  and 
actual  exercise  of  its  powers.  Sovereignty  consists 
not  so  much  in  the  direct  exercise  of  functions, 
as  in  the  power  potentially  possessed  to  draw  to 
one's  self  those  particular  powers  that  may  be  seen 
fit.  Federal  States  may  be  conceived  in  which  but 
very  few  functions  are  centrally  exercised ;  and,  on 
the  other  hand.  Confederacies  imagined,  in  which  the 
powers  of  the  central  government  are  most  ample. 
But  in  neither  case  is  the  political  character  of  the 
union  determined  thereby. 

Secondly,  the  distinction  between  these  two  polit- 
ical types  does  not  consist  in  the  fact  that  in  the 
Federal  State  the  operation  of  federal  law  is,  in 
all  cases,  directly  upon  individuals,  while  in  the 
Confederacy,  the  acts  of  the  central  power  apply  to 
the  Commonwealths  as  such,  and  through  them  to 


THE   NATURE   OF  THE   COMPOSITE   STATE  261 

their  citizens.  It  is  true  that  the  Federal  State 
must  not  be  dependent  upon  the  acquiescence  of  the 
individual  Commonwealths  for  the  execution  of  its 
laws;  but  it  is  entirely  possible  that  the  Federal  State 
may,  in  some  instances,  operate  through  the  mdi- 
vidual  Commonwealths  as  such. 

Also,  vice  versa,  in  the  Confederation,  law  may 
operate  in  some  instances  directly  upon  the  in- 
dividual. Thus  while  we  have  been  accustomed  to 
distinguish  our  present  Union  from  that  maintained 
under  the  Articles  of  Confederation  upon  this 
ground,  as  a  matter  of  fact,  this  rule  does  not  hold 
good  in  all  cases.  As  Madison  points  out  in  the 
Federalist,'^  "  In  some  instances,  as  has  been  shown, 
the  powers  of  the  new  government  will  act  on  the 
states  in  their  collective  characters.  In  some  in- 
stances also,  those  of  the  existing  government  act 
immediately  on  individuals.  In  cases  of  capture ; 
of  piracy ;  of  the  post-office ;  of  coins,  weights  and 
measures ;  of  trade  with  the  Indians ;  of  claims 
under  grants  of  land,  by  different  states ;  and  above 
all,  in  the  case  of  trials  by  courts-martial  in  the 
army  and  navy,  by  which  death  may  be  inflicted 
without  the  intervention  of  a  jury,  or  even  of  a  civil 
magistrate ;  in  all  these  cases  the  powers  of  the  con- 
federation operate  immediately  on  the  persons  and 
interests  of  individual  citizens." 

In  fact,  then,  the  exact  means  through  which 
laws  are  executed  does  not  so  much  matter.  The 
essential    point     is     whose    will    is    embodied    in 

1  No.  10.     Cf .  Westerkamp,  Staatenbund  und  Bundesstaat. 


262  THE   NATURE   OF   THE    STATE 

tliem  ?  Political  expediency  of  course  demands  that 
the  greater  and  more  important  functions  of  the 
federal  government  should  be  performed  through 
its  own  organs,  rather  than  through  those  political 
bodies  in  which  there  rest  historical  traditions  of 
complete  Sovereignty  and  national  autonomy,  and  a 
jealousy  of  over-control  by  the  central  power.  If 
the  Federal  State  trust  too  much  to  such  particular 
organs,  there  is  always  the  danger  of  its  commands 
being  less  faithfully  performed  than  they  would  be 
by  its  own  agents.  This  was  of  course  the  consider- 
ation that  caused  the  United  States  to  create  its 
own  courts  and  marshals  and  other  officers  for  the 
determination  and  execution  of  matters  of  federal 
or  interstate  interest.  In  cases  where  there  is  even 
a  remote  danger  of  rebellion  on  the  part  of  the 
Commonwealths,  the  necessity  is  proportionately  en- 
hanced, that  the  central  power  should  keep  well 
within  its  own  hands  not  only  the  formulation  but 
the  execution  of  its  own  orders.  The  same  prin- 
ciples of  course  require  that  in  Confederacies,  where 
there  is  danger  that  the  central  power  may  usurp 
the  Sovereignty,  the  States  should  limit  to  the 
smallest  amount  the  functions  actually  exercised  by 
their  common  and  central  organs. 

Thirdly,  the  absence  of  a  requirement  for  unani- 
mous consent  of  the  Commonwealths  for  purposes  of 
amendment  of  the  instrument  of  union  is  not  de- 
cisive as  to  the  non-confederate  character  of  such 
union.  For  example,  the  constitution  of  the  Con- 
federate States  of  1861-65,  though  avowedly  creat- 


THE  NATURE  OF  THE   COMPOSITE   STATE  263 

ing  but  a  Staatenhund,  did  not  require  such  unanimity. 
In  this  case  the  express  provision  that  each  State 
was  to  continue  individually  sovereign,  and  with  the 
right  at  any  time  to  withdraw  from  the  union,  saved 
such  union  from  being  a  federal  one.  Without  this 
express  sovereign  provision,  the  power  of  a  fraction 
of  the  individual  Commonwealths  to  amend  the  con- 
stitution, against  the  will  of  the  remaining  fraction 
would  necessarily  have  resulted  in  creating  a  Bundes- 
staat.  For  under  such  a  condition  it  would  be  theo- 
retically possible  at  any  time  for  any  particular 
Commonwealth  to  be  subjected  to  a  legal  control 
against  its  own  will,  —  a  condition  of  course  incom- 
patible with  its  Sovereignty.^ 

On  the  other  hand,  also,  where  there  is  this  re- 
quirement of  unanimity  of  vote  for  purposes  of 
constitutional  amendment,  a  Confederacy  is  not 
necessarily  created,  any  more  than  the  absence  of 
such  a  provision  denotes  the  existence  of  a  Federal 
State.  To  be  sure,  under  such  a  condition,  no  indi- 
vidual Commonwealth  can  be  further  deprived  of 
any  of  its  powers  without  its  own  consent ;  yet,  on 
the  other  hand,  they  may  not  legally  be  able  to 
escape  from  the  obligations  already  imposed  upon 

1  "  Granting  the  correctness  of  the  theory  that  the  several  States 
were  once  political  sovereignties,  and  that  each  surrendered  a  portion 
of  its  inherent  powers  to  the  general  government,  such  surrender  would 
go  no  further  than  the  express  provisions  of  the  constitution ;  as  to 
all  other  matters  not  reached  by  that  instrument,  their  sovereignty 
would  remain  intact.  By  this  theory,  then,  it  is  entirely  impossible 
that  three-fourths  of  the  States  can  compel  the  remaining  one-fourth 
to  give  up  a  further  portion  of  their  attributes  contrary  to  their  will." 
Pomeroy,  Constitulional  Law,  §  111. 


264  THE   NATURE   OE  THE   STATE 

them  by  the  constitution,  or  to  withdraw  from  the 
union.  Where  there  is  not  this  power  on  the  part 
of  a  Commonwealth  of  avoiding  obligations  already 
created,  the  Sovereignty  must  be  held  to  rest  with 
the  general  government.  The  fact  that  the  unani- 
mous vote  of  the  Commonwealths  (i.e.  majority  of 
the  people  grouped  in  Commonwealths)  is  necessary, 
means  only  that  the  federal  government  has  made 
the  act  of  altering  its  actual  competence  extremely 
difficult.  In  other  words,  no  one  individual  Com- 
monwealth has  the  power  to  alter  its  actual  com- 
petence, and  hence  it  is  not  sovereign.  The  central 
government  alone  has  the  power  of  constitutional 
amendment,  though  it  be  a  power  subject  to  extreme 
formal  limitation.  But  the  fact  that  it  is  so  for- 
mally limited  does  not  mean  that  the  power  does  not 
exist,  any  more  than  it  is  claimed  that  the  Polish 
assembly  had  not  the  legislative  power  because  of 
the  existence  of  the  libeimni  veto.  Practically,  of 
course,  in  any  State  of  developing  civilization,  such 
a  condition  as  this,  in  which  the  individual  Com- 
monwealth has  not  the  power  of  secession,  and,  at 
the  same  time,  the  central  power  cannot  change  its 
governmental  powers  except  under  conditions  that 
in  the  great  majority  of  cases  could  not  be  obtained 
would  soon  prove  unworkable,  and  would  precipi- 
tate a  revolution,  either  by  way  of  secession  on  the 
part  of  the  individual  Commonwealths,  or  by  an 
unconstitutional  extension  of  central  powers. 

Fourthly,  and   finally,  the    distinction   between  a 
Federal  and  a  Confederate  State  is  not  one  of  enu- 


THE  NATUKE   OF  THE   COMPOSITE   STATE  265' 

merated  or  imcnumercated  powers.  It  is  not  a  ques- 
tion, as  has  been  already  said,  of  the  amount  of 
powers  actually  exercised  at  any  one  time  by  the 
central  government.  Even  Westerkamp,  who  holds 
the  distinction  between  these  two  forms  to  be  a 
quantitative  rather  than  a  qualitative  one,  does  not 
place  any  weight  upon  this  feature.^ 

The  final  test  in  all  cases  is,  as  has  been  so  many 
times  said,  as  to  the  power  or  lack  of  power  of  the 
individual  State  or  Commonwealth  to  determine  the 
extent  of  its  own  obligations  under  the  articles  of 
union,  and,  in  the  last  resort,  if  their  view  be  not 
acquiesced  in  by  the  general  government,  to  with- 
draw from  the  union.  Where  it  is  constitutionally 
provided  that  m  case  of  alleged  conflict  between  fed- 
eral and  commonwealth  or  State  law,  such  conflict 
shall  be  considered  by  a  federal  tribunal  whose  de- 
crees are  enforceable  by  the  federal  executive,  then, 
in  such  case,  a  Bundesstaat  certainly  exists.  If,  on 
the  other  hand,  it  be  held  that  a  dissatisfied  State 
has  the  right  of  secession,  there  is,  of  course,  only 
a  provisional  right  of  federal  enforcement,  namely, 
provisional  upon  the  consent  of  the  State  to  remain 
in  the  union. 

The  doctrine  of  nullification,  which  grants  to  the 
individual  members  of  the  union  the  right  to  refuse 
obedience  to  any  general  law  that  it  deems  incon- 
sistent with  the  articles  of  union,  is  of  course  appli- 
cable only  to  a  Confederacy.  But  even  there  it 
cannot  be  termed  a  "  right "  of  nullification.     Each 

^  Staatenhund  unci  Bundesstaat,  p.  45. 


266  THE  NATURE   OF   THE   STATE 

member  of  the  miion  being  completely  sovereign, 
may  govern  its  action  by  its  own  will,  and  no  other 
member  may  legally  say  nay.  But  it  is  inconceiv- 
able that  the  assertion  of  such  a  power  on  the  part 
of  a  particular  State  would  not  lead  to  disruption  of 
the  union.  For  it  can  scarcely  be  imagined  that  the 
other  members  would  consent  to  the  avoidance  by 
such  State  of  the  execution  of  a  part  of  the  general 
law,  while  they  held  themselves  bound  to  it.  Such  a 
condition  of  affairs  would  in  fact  result  ipso  facto  in 
a  destruction  of  the  union  to  that  extent,  its  sole 
purpose  being  but  to  secure  a  concert  of  action  in 
matters  of  general  interest.  It  would  indeed  be  a 
just  causus  helli  against  the  State  so  refusing  obedi- 
ence to  the  agreement  in  which  it  bound  itself  to 
common  action.  Jefferson,  the  author  of  the  Ken- 
tucky Resolutions,  himself  asserted  the  propriety  of 
even  a  confederate  government  coercing  a  State 
when  he  wrote  to  Cartwright  advising  the  Congress 
of  the  old  Confederacy  to  send  a  frigate  and  compel 
a  State  to  pay  its  quota  of  taxes. 

United  States.  —  In  our  own  country,  to  such  an 
extent  are  Commonwealth  agencies  employed  for  the 
performance  of  governmental  duties,  and  even  for 
the  purposes  of  amendment  of  the  federal  constitu- 
tion, that  it  has  not  been  plain  to  what  extent 
these  organs  act  merely  as  agents  of  the  central 
power,  and  to  what  extent  as  independent  bodies 
politic. 

The  outcome  of  the  Civil  War  has  forever  deter- 
mined the  question  of  the  nature  of  our  Union  as  a 


THE  NATURE   OF  THE   COMPOSITE   STATE  207 

matter  of  fcact,  but  the  greatest  diversity  of  opinion 
still  prevails  regarding  which  side,  as  a  point  of 
constitutional  law,  was  in  the  right  in  this  contest. 

Our  fundamental  instrument  of  government,  not 
itself  containing  a  solution  of  the  problem,  argu- 
ments upon  this  question  have  been  largely  governed 
by  what  have  been  conceived  to  have  been  the  nature 
of  the  historical  steps  that  led  to  the  adoption  of  the 
Constitution.  Upon  the  one  side,  the  endeavor  has 
been  to  prove  that  the  individual  Commonwealths 
never  were  independent  States  before  the  creation 
of  the  national  government,  and,  therefore,  could  not 
have  contracted  as  States ;  or  if  they  were  indepen- 
dent sovereignties,  that  the  ratification  of  our  present 
instrument  of  government  w^as  not  secured  by  their 
consent  as  such,  but  by  the  People  of  all  thirteen 
acting  as  a  unit.  Upon  the  other  side,  the  contradic- 
tories of  these  propositions  have  been  maintained. 

It  is  well  agreed  that  the  present  Union  is  not  an 
outgrowth  of  the  union  established  under  the  old 
Articles  of  Confederation.  Those  articles  undoubt- 
edly created  nothing  more  than  a  Confederacy.  The 
States  still  retained  their  individual  Sovereignty. 
No  powers  of  Sovereignty  were  vested  in  the  central 
government.  When  the  convention,  that  was  called 
to  revise  these  Articles,  proposed  a  new  scheme  of 
Union,  that  was  to  take  effect  upon  ratification  of 
only  nine  colonies,  it  exceeded  the  powers  with 
which  it  was  endowed.  •  And  when  the  people  ac- 
cepted this  instrument  by  such  a  partial  vote,  it  was 
not  an  amendment   or   revision  of   its  "  Articles," 


268  THE  NATUIIE   OF  THE   STATE 

for  such  articles  could  be  amended  only  by  a 
unanimous  vote.  It  was  the  establishment  of  an 
entirely  new  Union.  Whether  or  not  this  new 
union  created  a  Confederacy  or  Federal  State,  turns 
upon  a  point  that  does  not  admit  of  historical  veri- 
fication. 

Since  the  Articles  of  Confederation  created  only  a 
Staatenhimd,  under  them  the  thirteen  colonies  were,  or 
became,  sovereign  and  independent  States.  From  this 
standpoint,  therefore,  it  is  immaterial  what  their  char- 
acter had  been  before  that  time.  To  maintain  the 
federal  view,  then,  it  is  necessary  to  show  that  at 
the  time  of  the  adoption  of  the  new  constitution 
such  a  sentiment  of  unity  existed  among  the  colo- 
nies as  may  fairly  be  said  to  have  welded  them  into 
a  single  Nation,  and  that  therefore  the  people,  though 
ratifying  in  state  conventions,  yet  ratified  as  mem- 
bers of  a  whole,  and  merely  used  then  existing 
state  divisions  and  agencies  from  motives  of  con- 
venience ;  that  in  so  doing  they  committed  a  revo- 
lutionary act  towards  their  several  States ;  and  that 
thereby  such  States  were  destroyed,  and  were  recre- 
ated as  Commonwealths  by  the  new  constitution,  and, 
as  such,  endowed  with  only  a  partial  and  delegated 
competence  of  political  action. 

To  maintain  the  States'  Rights  theory  upon  his- 
torical grounds,  it  is  necessary  to  hold  the  reverse 
of  this ;  that  the  people  when  ratifying  the  con- 
stitution, did  so  as  citizens  of  thirteen  independent 
Sovereignties ;  and  that  the  conventions  in  which 
they  so  ratified  were  essentially  state  organs.     The 


THE  NATURE   OF  THE   COMPOSITE   STATE  269 

contention  that  thus  separates  these  two  parties 
is  one  that  obviously  does  not  admit  of  final  deter- 
mination upon  historical  grounds.  Historical  evi- 
dence abounds  showing  JDoth  the  existence  of  feelings 
of  political  unity  and  of  the  lack  of  it,  and  it  is  in- 
herently impossible  to  so  balance  these  opposing 
evidences  as  to  obtain  a  demonstrably  certain  result. 

Coming  now  to  internal  proof,  to  the  interpreta- 
tion of  the  instrument  of  union  itself,  we  do  not  find 
the  question  much  clearer.  So  general  and  indefinite 
are  some  of  its  statements,  that  either  "  States' 
Rights  "  or  federal  deductions  may  be  fairly  drawn. 

The  people  of  the  United  States  are  spoken  of  as 
the  adopting  parties,  but  no  decisive  clue  is  given  as 
to  wdiether  this  means  the  people  of  the  United  States 
as  a  unit,  or  as  divided  into  thirteen  independent 
sovereignties.  It  is  provided  that :  "  This  constitu- 
tion and  the  laws  of  the  United  States  which  shall 
be  made  in  pursuance  thereof ;  and  all  treaties  made, 
or  which  shall  be  made,  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the  land ; 
and  the  judges  in  every  State  shall  be  bound  thereby, 
anything  in  the  constitution  or  laws  of  any  State 
to  the  contrary  notwithstanding."  On  the  other 
hand  it  is  decreed  that,  "  The  ratification  of  the  con- 
vention of  nine  States  shall  be  sufficient  for  the 
establishment  of  this  convention  hetiveen  the  States  so 
ratifying."  This  latter,  taken  by  itself,  would  cer- 
tainly give  a  contractual  aspect  to  the  Union.  "What 
was  the  political  character  of  Rhode  Island,  after  the 
adoption  of  the  present  constitution,  but  before  its 


270  THE  NATURE   OF  THE   STATE 

entrance  into  the  Union,"  the  States'  Rights  advo- 
cate will  ask  ?  "  Certainly  it  was  no  part  of  the  Eng- 
lish possessions,  nor  did  it  even  belong  to  the  old 
Confederacy  which  had  then  ceased  to  exist.  Surely 
it  must  then  have  been  sovereign."  To  which  the 
Federalist  will  ask  in  return,  "  What  is  to  be  consid- 
ered the  status  of  those  members  of  our  Union 
subsequently  created  as  Commonwealths  from  the 
Territories?  What  possible  claim  of  Sovereignty 
can  they  allege  ever  to  have  possessed?" 

Without  going  further  into  these  questions  that 
have  been  so  often  and  so  fully  discussed  by  our 
jurists,  it  seems  sufficient  to  say  that  we  can  no 
more  obtain  a  final  and  conclusive  answer  to  the 
question  regarding  the  character  of  the  Union  en- 
tered into  by  the  American  People  in  1789,  from  the 
mere  wording  of  our  fundamental  instrument  of  gov- 
ernment, than  we  can  from  purely  historical  data. 
It  is,  in  fact,  entirely  probable  that  this  indefinite- 
ness  of  expression  in  the  constitution  was  deliber- 
ately adopted.  The  needs  of  the  time  demanded 
the  establishment  of  a  Union  of  a  certain  degree  of 
strength  and  coherence ;  and,  on  the  other  hand, 
commonwealth  particularism  was  so  strong  as  to 
make  impossible  of  adoption  an  instrument  that 
should  definitely  declare  the  Sovereignty  to  be  in  the 
central  body,  and  which  should  deny  to  the  individual 
members  the  right  of  withdrawal  at  will.  It  is  quite 
rational  to  believe  that  in  order  to  avoid  the  two 
horns  of  this  dilemma,  the  statesmen  of  that  period 
purposely  declined  to  take  an  unequivocal  position. 


THE  NATURE   OF  THE   COMTOSITE   STATE  271 

This  is  the  view  taken  by  Professor  A.  W.  Small,  in 
his  essay  TJie  Beginnings  of  American  Nationality ^ 
in  which  he  says  :  "  The  people  of  the  United  States 
simply  dodged  the  responsibility  of  formulating  their 
will  upon  the  distinct  subject  of  national  Sover- 
eignty until  the  legislation  of  the  sword  began  in 
1861."  President  F.  A.  Walker,  in  a  recent  paper, 
takes  the  same  ground.^ 

But  it  is  not  to  be  concluded  from  this  that  our 
political  character  long  remained,  or  still  remains,  in 
this  indeterminate  condition.  Even  granting  that 
the  constitution  at  the  time  of  its  adoption  created, 
and  was  intended  to  create,  a  Confederacy,  the  growth 
of  a  national  feeling  and  the  interpretation  of  that 
instrument  by  Congress  and  by  the  Supreme  Court 
of  the  United  States  (an  interpretation  that  was 
acquiesced  in  by  the  people),  soon  placed  beyond  all 
doubt  the  character  of  the  Union. 

One  of  the  very  first  laws  passed  by  the  Federal 
Congress  was  the  Judiciary  Act  creating  the  inferior 
federal  courts  and  outlining  federal  jurisdictions. 
The  25th  Section  of  this  act  provided  for  a  final  re- 
view of  all  cases  decided  in  the  highest  courts  of 
the  several  Commonwealths,  in  which  were  drawn 
into  question  the  relative  competences  of  the  Union 

1  The  Grotcth  of  American  Nationality  (Forum,  June,  1895).  "The 
issue  was  one,"  says  he,  "which,  if  not  purposely  rnade  doubtful,  was 
purposely  left  doubtful,  because  any  attempt  to  force  the  issue  at  that 
time ;  to  resolve  the  difficulties  of  the  situation ;  to  define  the  rela- 
tions of  the  States  to  the  general  Government,  away  back  to  their 
source ;  to  raise  the  question  of  coercion,  should  one  State  seek  to 
secede  from  the  others,  would  have  meant  nothing  more  or  less  than 
the  immediate  and  complete  failure  of  any  scheme  of  union." 


272  THE  NATURE   OF  THE   STATE 

and  of  tlie  Commonwealths,  and  in  which  the  decis- 
ions were  adverse  to  the  federal  power.  This  one 
act,  together  with  its  acceptance  hy  the  people  and 
by  the  Supreme  Court,  was,  it  seems  to  us,  almost 
decisive  of  what  was  henceforth  to  be  the  character 
of  the  United  States  government.  Thus  was  claimed 
and  exercised  by  the  central  power  the  right  of  deter- 
mining, in  the  last  instance,  the  construction  of  its 
instrument  of  government.  It  is  no  wonder  that 
Calhoun  and  his  school  so  strongly  inveighed  against 
the  propriety  and  constitutionality  of  this  section. 

This  appellate  power  as  exercised  by  the  United 
States  Supreme  Court  determined  conclusively  that 
there  remained  in  the    several  Commonwealths  no 
legal  power  of  refusing  obedience  to,  or  in  any  way 
nullifying  the  effect  of,  a  federal  law  that  has  been 
decided  to  be  constitutional  by  the  federal  tribunal ; 
nor  right  of  enforcing  laws  of  their  own  that  have 
been  declared  by  the  same  tribunal  to  be  in  excess  of 
their   legislative    competence.     The   claim  was   still 
made,  however,  by  the  States'  Rights  party  —  a  claim 
that  in  1861  they  attempted  to  put  into  actual  opera- 
tion,—  that  the  individual  members  of  the  Union  had 
the  right  to  withdraw  from  the  Union,  without  the 
consent  of  the  rest,  in  case  they  felt  their  interests  too 
greatly  prejudiced  by  longer  remaining  in  the  Union. 
The  outcome  of  the  Civil  War  finally  decided  that  it 
was  the  dominant  will  of  the  People  that  the  consti- 
tution was  to  be  so  construed  as  to  render  this  claim 
of  right  of  secession  unwarranted ;  and,  as  said,  post 
helium  decisions  of  the  Supreme  Court  have  repeat- 


THE   NATURE   OF  THE  COMPOSITE   STATE  273 

eclly  held  tliat  the  Southern  Commonwealths  never 
were  out  of  the  Union  and  never  legally  could  be. 

These  facts  determine  the  present  federal  charac- 
ter of  our  Union.  In  the  process  of  constitutional 
amendment,  the  several  Commonwealths  cannot  be 
considered,  therefore,  as  playing  more  than  formal 
parts  as  agents  of  the  National  State.  This  reason- 
ing does  not,  of  course,  attempt  to  fix  the  exact  date 
of  the  birth  of  the  National  State,  and  in  fact,  as  has 
been  previously  shown,  it  is  impossible  to  determine 
historically  the  exact  moment  of  creation  of  any 
State,  Composite  or  Unitary. 

Granting  that  it  was  intended  to  create  a  Confed- 
eracy in  1789,  the  fact  is  that  the  constitution  was 
so  indefinitely  worded  that  it  could  be  mterpreted  as 
creating  a  National  State  without  doing  too  much 
violence  to  the  meaning  of  its  words.  The  People 
were  thus  enabled,  through  Congress  and  the  Su- 
preme Court,  gradually  to  satisfy  their  feelings  of 
political  unity  without  a  resort  to  those  open  revo- 
lutionary means  which  would  have  been  necessary 
had  the  constitution  been  more  definitely  worded. 
If  we  grant,  however,  that  a  correct  legal  interpreta- 
tion of  the  constitution  would  determine  that  not  only 
was  a  Confederacy  originally  intended,  but  actually 
provided  for ;  then,  however  peaceably  and  gradually 
the  change  to  a  Federal  State  was  effected,  —  a  change 
that  was  not  disclosed  until  the  crisis  of  civil  war,  — 
such  a  change  must  necessarily  be  considered  revolu- 
tionary in  character,  and,  in  contradiction  to  this,  it 
would  not  do  to  point  to  the  manner  in  which  this 


274  THE   NATURE   OF   THE  STATE 

transition  has  been  clothed  in  apparent  legal  form. 
If,  on  the  other  hand,  it  be  said  that  a  Federal  Union 
existed  from  the  beginning,  there  is  of  course  no 
difficulty  in  maintaining  its  continued  existence. 

Argument  such  as  the  above  is  in  complete  conso- 
nance with  the  principles  laid  down  in  this  treatise, 
and  renders  useless  for  our  purposes  any  further  con- 
sideration of  the  character  of  the  historical  steps  that 
led  to  the  adoption  of  our  instrument  of  union  in 
1789.  Sovereignty  is  an  attribute  that  has  to  be 
proved,  not  as  a  matter  of  law,  but  of  fact,  but  not  as 
such  a  fact  as  may  be  demonstrated  by  the  histori- 
cal evidence  ordinarily  adduced  to  explain  the  char- 
acter of  the  constituent  act  of  1.789.  Sovereignty 
expresses  the  supreme  will  of  a  People,  and  this 
will  is  exhibited  in  outward  political  acts.  But  all 
acts,  even  though  supported  by  the  entire  force  of 
a  community,  and  based  upon  its  desires,  are  not 
necessarily  expressions  of  the  sovereign  political  will. 
Though  Sovereignty  may  not  itself  be  proved  as 
a  matter  of  law,  the  existence  of  legitimate  organs 
and  legitimate  powers  for  the  expression  of  its  will 
must  be  so  demonstrated.  Acts,  if  they  would  be 
considered  as  of  the  State,  must  be  performed  in 
accordance  with  the  formal  provisions  of  law,  con- 
stitutional or  ordinary.  In  other  words  Sovereignty 
is  not  to  be  identified  with  popular  will,  nor  the 
power  of  the  State  with  mere  force.  This  point 
we  hope  to  make  plain  in  the  next  chapter.  Thus 
when  Hurd  maintains,^   that   the    original  thirteen 

1  The  Union  State. 


THE  NATURE  OF  THE   COMPOSITE   STATE  275 

colonies  never  were  severally  sovereign  after  their 
separation  from  England,  and  before  their  union  in 
1789,  for  tlie  reason  that  each  of  them  severally 
lacked  the  power  to  maintain  an  autonomous  exist- 
ence, he  is  confusing  the  two  conceptions  of  Sover- 
eignty as  a  legal  power,  and  force,  as  a  mere  physical 
fact.  Even  his  assertion  that  contemporary  records 
show  the  existence  of  a  sentiment  of  national  unity, 
and  a  general  desire  for  concert  in  action,  does  not 
help  the  thesis.  For,  whatever  this  will  may  have 
been,  unless  there  were  provided  organs  through 
which  its  commands  might  be  legally  expressed,  a 
sovereign  national  power  can  not  be  alleged  to  have 
been  established. 


CHAPTER  XI 

LOCATION     OF    SOVEREIGNTY    IN    THE    BODY    POLITIC 

Historical  Retrospect.  —  Since  very  early  times 
there  has  been  constantly  present  in  political  life, 
the  question  of  the  extent  to  which  the  people  at 
large  should  select  their  own  rulers  and  determine 
the  manner  in  which  their  public  affairs  should  be 
administered.  In  a  very  general,  and,  as  we  shall 
see,  incorrect  manner,  this  problem  has  been  treated 
as  one  concerning  the  location  of  Sovereignty  in  the 
body  politic. 

We  may  say  that  the  first  recognition  of  the  right 
of  citizens  to  a  sphere  of  activity  in  which  they 
should  be  protected  from  arbitrary  interference  on 
the  part  of  Government  is  to  be  found  in  Roman 
Law.  Though  it  is  true  that  the  Romans  adopted 
the  principle  that  quidquicl  2^'^i'^^cU^^  placicit  legis 
Jiahet  vicjorem,  yet  it  is  to  be  remembered  that  they 
postulated  that  the  original  source  of  such  political 
power  is  in  the  People,  and  that  the  powers  of  the 
governing  are  derived  from  a  grant  by  them.  This 
grant,  however,  they  held  to  be  an  alienation  and  not 
a  revocable  delegation. 

In  our  sketch  of  the  history  of  the  contract 
theory  we  have  seen  the  direction  taken  by  political 
theory  in  connection  with  the  long-continued  dispute 

270 


LOCATION   OF   SOVEREIGNTY   IN   BODY   POLITIC        277 

between  the  Empire  and  the  Papacy.  In  this  dispute 
as  to  the  basal  prerogative  of  the  State,  —  whether 
directly  divine  or  human,  —  it  miglit  have  been  ex- 
pected that  the  doctrine  of  Popular  Sovereignty  would 
be  fully  discussed.  As  a  matter  of  fact,  however, 
though  distinctly  stated,  and  by  the  end  of  the  thir- 
teenth century  accepted  by  all  parties  alike,  as  origi- 
nally in  force,  this  doctrine  received  for  many  years 
but  very  slight  development.  And  for  this  reason. 
As  yet  the  dispute  was  merely  one  between  Church 
and  temporal  rulers.  The  limits  to  the  exercise  of 
the  political  power  itself  were  not  yet  questioned. 
The  time  was  not  ripe  for  the  people  themselves  to 
contest  this  point.  Absolutism,  whether  ecclesiasti- 
cal or  temporal,  was  not  seriously  attacked. 

Gradually,  however,  new  conditions  were  intro- 
duced that  rendered  the  continued  existence  of  such 
a  state  of  affairs  impossible.  Closely  following  the 
growth  of  kingly  power,  and  the  decay  of  the  feudal 
barons,  came  the  enfranchisement  of  the  communes, 
and  the  rise  of  commercial  towns  with  forms  of  free 
municipal  government.  The  growth  of  the  liberties 
of  these  urban  centres  was  favored  by  the  kings 
as  a  check  against  the  barons,  and  the  burghers 
thus  became  a  political  element  of  importance  in 
the  State.  Foil  owning  the  Crusades  came  a  revival 
of  classical  learning,  an  enlightenment  of  manners, 
a  development  of  arts  and  industries,  and  an  in- 
creased knowledge  of,  and  commerce  with,  all  parts 
of  the  known  world.  Everything  tended  to  the 
widening    of    the    intellectual   horizon    of    Europe. 


278  THE  NATURE   OF  TUE   STATE 

The  art  of  printing  with  movable  blocks  of  type 
was  invented,  thereby  furnishing  the  means  for  the 
diffusion  of  knowledge  beyond  all  limit  that  had 
been  previously  dreamed  of.  Schools  and  universi- 
ties arose,  theology  and  law  being  the  chief  studies 
pursued.  ^Yith  the  fall  of  the  Eastern  Empire  came 
an  influx  of  foreigners  into  Western  Europe,  bringing 
with  them  their  arts  and  sciences.  The  Arabs  and 
the  Jews  contributed  from  their  great  learning  to 
the  increasing  enlightenment  of  Europe.  Finally, 
in  the  sixteenth  century  came  the  Protestant  Refor- 
mation declaring  the  freedom  of  conscience,  the  right 
of  individual  thinking,  the  emancipation  from  the 
bonds  of  ecclesiastical  despotism  and  from  the  tradi- 
tions of  the  past,  and  the  propriety  of  freedom  in 
speculation  and  inquiry. 

Political  science  felt  the  immediate  influence  of 
this  development.  Hotman,^  Languet,^  Buchanan,^ 
Althusius,^  and  others,  constituting  a  school  of 
writers,  termed  the  Monarcliomachi,^  refused  to  view 
the  royal  power  as  unlimited  and  illimitable,  and 
openly  declared  the  modern  doctrine  of  Popular 
Sovereignty ."      "  Who  will  dare  say,"  wrote  Althu- 

^  Franco-Gallia,  sloe  tractatus  de  regimine  regnum  Galliae. 

^  Vindicice  contra  tyrannos. 

'  De  jure  regni  apud  Scotus. 

*  Politicn  methodice  digesta. 

^  Upon  the  views  of  the  Monnrchomachi,  see  especially  Gierke, 
Johannes  Allhiinius  u.  die  Entwicliung  der  naturro.chtlichen  Staatsthe- 
orien ;  and  Uiidolph  Treuiiiann,  Die  Monarchomuchen. 

^  An  additional  significance  attached  to  the  theory  of  popular 
sovereignty  in  connection  with  tlie  contests  between  Pope  and  Coun- 
cil as  to  whether  the  council  represented  the  whole  clergy,  and  in  this 
capacity  was  superior  to  the  Tope,  or  whether  it  acted  iu  an  inde- 


LOCATION  OF   SOVEREIGNTY  IN  BODY  TOLITIC       279 

sius,  "that  the  people  are  able  to  transfer  to  any 
one  their  Sovereignty  ?  Sovereignty  is  the  power 
indivisible,  incommunicable,  and  imprescriptible  to 
any  authority.  .  .  .  Bodin  is  deceived  in  attribut- 
ing Sovereignty  to  the  kings  or  nobles ;  it  is  the 
right  of  society  entire." 

Thus  the  development  of  the  idea  of  Popular 
Sovereignty  became  intimately  bound  up  with  one 
view  of  the  contract  theory ;  and  its  subsequent  de- 
velopment in  this  connection,  we  have  already  out- 
lined in  our  treatment  of  that  phase  of  political 
speculation.  Beginning  with  the  outbreak  of  the 
French  Revolution,  the  subsequent  history  of  Europe 
is  largely  a  record  of  the  manner  in  which  it  has 
been  attempted  to  put  the  theory  in  actual  practice. 

The  Location  of  Sovereignty.  —  The  inquiry  con- 
cerning the  location  of  the  sovereign  power  in  the 
body  politic  is,  as  has  been  said,  distinct  from  the 
question  whether  this  or  that  organization  is  en- 
dowed with  this  attribute.  Admitting  the  possession 
of  Sovereignty  in  a  body  politic,  we  have  now  to  dis- 
cover the  person  or  persons  in  whose  hands  its  exer- 
cise ultimately  rests.  It  might  appear  at  first  blush 
that  this  were  a  question  whose  solution  would  be  de- 
pendent upon  an  analysis  of  the  governmental  organ- 
ization under  examination,  and,  as  such,  would  fall 
within  the  peculiar  province  of  constitutional  law, 
rather  than  of  political  philosophy.     But  such  is  not 

pendent  capacity  and  was  of  less  authority  than  he.  I^Iarsilius  and 
Occam,  in  their  application  of  the  theory  to  this  point  intimated  that 
even  the  laity  properly  participated  iu  this  popular  ecclesiastical 
Sovereignty. 


280  THE  NATURE   OF   THE   STATE 

the  case.  As  a  matter  of  fact,  the  question  is  a 
much  deeper  one  than  this,  and  for  its  answer  re- 
quires the  inquiry  to  be  pursued  far  beyond  the 
regions  of  mere  constitutional  analysis,  and  de- 
mands a  closer  consideration  than  we  have  yet  made 
of  the  essential  relations  that  exist  between  a  Peo- 
ple and  the  State  in  whicL  they  are  politically 
organized. 

Kemembering  that  by  Sovereignty  is  designated 
the  supreme  will  of  the  State,  and  that  that  person, 
or  body  of  persons,  is  the  sovereign,  in  whose  hands 
rests  the  power,  in  the  last  resort,  to  impose  his  or 
its  will  m  a  legal  vianner  upon  the  whole  body  of 
persons  that  constitute  the  State,  —  remembering 
this,  we  may  say  that  the  one  question  to  be  deter- 
mined is,  whether  it  be  possible  to  locate  this  power 
in  the  hands  of  a  definite  person  or  body  of  persons, 
constituting  a  particular  part  of  the  body  politic ;  or, 
whether  the  possession  of  such  power  is  predicable 
only  of  the  whole  people.  That  this  is,  in  fact,  the 
only  question  which  we  need  to  discuss  in  this  chap- 
ter is  shown  by  the  following  reasoning. 

If  the  sovereign  power  may  be  located  in  the 
hands  of  a  definite  individual,  or  body  of  individu- 
als, other  than  the  whole  people,  the  remaining  por- 
tion of  the  investigation  would  demand  nothing  more 
than  an  analysis  of  the  constitution  of  each  particu- 
lar State  in  order  to  discover  such  person  or  persons. 
Such  a  study  would  obviously  not  fall  within  the 
scope  of  this  treatise.  If,  on  the  other  hand,  it  be 
determined  that  the  search  for  the  sovereign  power 


LOCATION  OF  SOVEREIGNTY   IN  BODY  POLITIC       281 

leads  ultimately  and  inevitably  to  the  entire  people, 
then  the  form  of  government  is  immaterial,  and  no 
further  analysis  is  necessary. 

The  belief  in  the  view  that  in  every  political  com- 
munity Sovereignty  is  discoverable  in  some  definite 
person  or  body  of  persons,  constitutes  one  of  the 
chief  tenets  of  the  Analytical  School  of  Jurispru- 
dence. We  repeat  Austin's  famous  definition  of 
Sovereignty :  "  If  a  determinate  human  superior 
receive  habitual  obedience  from  the  bulk  of  a  given 
society,  that  determinate  superior  is  sovereign  in 
that  society,  and  the  society,  including  the  superior, 
is  a  society  political  and  independent." 

In  accordance  with  this  definition  Austin  proceeds 
to  maintain  that  there  is  such  a  determinate  sover- 
eign discoverable  in  every  political  and  independent 
society,  and  that  such  a  determinate  sovereign  is, 
indeed,  a  conditio  sine  qua  non  to  a  State's  existence 
as  such.  Furthermore,  as  we  have  already  seen,  he 
defines  all  law  as  proceeding  directly,  or  indirectly, 
from  this  sovereign ;  and,  as  a  logical  result  there- 
from, deduces  the  freedom  of  such  a  sovereign  from 
all  legal  limitations.  "Sovereignty  or  supreme 
power,"  he  says,  "is  incapable  of  legal  limitation, 
whether  it  reside  in  an  individual  or  in  a  number 
of  individuals." 

In  a  preceding  chapter  we  have  demonstrated 
the  legally  absolute  character  of  the  State.  We 
shall  here  consider  more  particularly  the  manner  in 
which  this  complete  legal  competence  is  practically 
restricted.     The   arguments  brought  forth   by   such 


282  THE  NATURE  OF  THE  STATE 


writers  as  Clark/  Lightwood,^  Bliss/  Jameson/ 
Lowell/  and  others,  in  attempted  refutation  of 
Austin's  position,  are  almost  wholly  directed  to  the 
demonstration  that,  as  a  matter  of  fact,  there  never 
existed  a  monarch,  however  despotic  in  power,  who 
possessed  the  actual  power  of  absolutely  controlling 
all  branches  of  the  laws  by  which  his  subjects  were 
governed.  As  a  proof  of  this,  is  cited  the  fact 
that  in  the  most  extreme  cases  of  absolutism,  the 
power  of  altering  or  abolishing  existing  law  has  ex- 
tended but  very  little  beyond  the  field  of  public  law. 
As  Professor  Bliss  says,  "  The  ruler  may  succeed  in 
revolutionizing  public  law,  although  success  in  that, 
without  large  private  co-operation,  is  scarcely  known ; 
yet  the  power  to  thus  change  the  body  of  private  law 
can  hardly  be  conceived.  We  have  no  example  in 
history.  Alterations  have  been  made  ;  and  these,  if 
radical,  and  without  corresponding  change  of  opin- 
ion, will  excite  commotion,  although  affecting  but 
a  single  title.  But  to  sweep  away  a  whole  system 
and  substitute  a  new  one, — one  foreign  to  the  habits 
of  the  subject,  one  that  runs  counter  to  his  preju- 
dices and  passions,  one  from  its  very  novelty  sup- 
posed to  endanger  his  rights,  —  would  be  almost  as 
impossible  as  to  change  the  order  of  the  seasons."  ®  ' 
The  fact  is,  as  must  be  apparent  to  all,  that 
there  are  limits  to  the  endurance  of  any  People, 
however  patient,  unenlightened,  and  submissive,  and 

^  Practical  Jurisprudence  :  A  Comment  on  Austin. 

2  The  Nature  of  Positive  Lavi.  *  Of  Sovereignty. 

*  Political  Science  Quarterly,  Vol.  V.  No.  2. 

^  Essays  on  Government.  ®  Of  Sovereignty,  p.  48. 


LOCATION   OF  SOVEREIGNTY   IN  BODY  POLITIC       283 

wlien  oppressed  beyond  this  limit  they  will  prefer 
the  evils  of  open  resistance  to  those  of  submission ; 
and  if  this  oppression  be  carried  so  far  as  to  excite 
the  opposition  of  the  entire  people,  or  a  large  por- 
tion of  them,  the  ruling  powers  will  be  overthrown. 
These  are  facts  that  are  necessarily  recognized  by 
every  ruler.  As  Hume  well  says,  "  As  force  is 
always  on  the  side  of  the  governed,  the  governors 
have  nothing  to  support  them  but  opinion.  It  is 
therefore  on  opinion  only  that  government  is  founded, 
and  this  maxim  extends  to  the  most  despotic  mili- 
tary governments  as  well  as  to  the  most  free  and 
most  popular."  ^ 

In  fact,  Austin  himself  expressly  and  repeatedly 
affirms  that  the  legal  sovereign  is  actually  controlled 
in  the  exercise  of  power  by  the  wishes  of  the  com- 
munity. In  his  very  definition  he  says,  "If  a 
determinate  human  superior  not  in  a  habit  of  obedi- 
ence to  a  like  superior  receive  habitual  obedience," 
etc.,  the  word  "habitual"  thus  indicating  the  possi- 
bility of  the  sovereign  will  being  opposed.  Again  he 
sa3^s,  "  If  perfect  or  complete  independence  be  of  the 
essence  of  sovereign  power,  there  is  not  in  fact  the 
human  power  to  which  it  will  apply.  Every  govern- 
ment, let  it  be  ever  so  powerful,  renders  occasional 
obedience  to  the  commands  of  other  governments. 
And  every  government  defers  habitually  to  the 
opinions  and  sentiments  of  its  sovereign  subjects."  ^ 
And,  also,  "  To  an  indefinite  though  limited  extent, 

1  Collected  Essays,  Pt.  I.  No.  4. 

2  Lectures  on  Jurisprudence,  ed.  1867,  Vol.  I.  p.  242. 


284  THE  NATURE  OF  THE   STATE 

the  monarch  is  superior  to  the  governed,  his  power 
being  commonly  sufficient  to  secure  compliance  with 
his  will.  But  the  governed,  collectively  or  in  mass, 
are  also  the  superior  of  the  monarch,  who  is  checked 
in  the  abuse  of  his  might  by  fear  of  exciting  their 
anger  and  of  arousing  to  active  resistance  the  might 
which  slumbers  in  the  multitude."  ^ 

These  are  but  other  ways  of  expressing  the  truth 
that  in  no  government  can  there  be  found  an  actual 
power  greater  than  that  to  be  found  in  the  nation. 
That  the  whole  is  greater  than  any  of  its  parts. 

States  differ  in  their  governmental  organizations, 
as  to  the  amount  of  political  power  placed  in  the  hands 
of  their  agents,  and  the  manner  of  exercise  of  such 
power,  but  the  quantum  of  their  power  is  ever  the 
same.  They  are  despotic  or  popular,  according  to  the 
ease  with  which  their  constitutions  permit  of  a  legal 
expression  and  execution  of  the  wishes  of  the  people 
in  regard  to  the  administration  of  their  public  affairs. 
Popular  government  is  thus  synonymous  with  sensi- 
tiveness of  the  ruling  powers  to  public  opinion.  In 
modern  times  this  sensitiveness  has  been  secured  in  a 
large  measure  by  popular  representation,  by  extension 
of  the  suffrage,  by  local  self-government,  and  by  such 
devices  as  the  Refer endum  in  Switzerland,  by  the 
"  appeal  to  the  country  "  by  a  defeated  Ministry  in 
England,  and  by  frequent  elections  in  America. 

^  The  Province  of  Jurisprudence  Determined,  p.  14  (ed.  1861).  See 
also  idem,  note  to  p.  192,  and  p.  272.  Professor  Dewey,  in  the  Political 
Science  Quarterly  for  March,  1801,  shows  the  tendency  of  Maine  and 
others  to  treat  Austin's  system  as  if  it  ignored  this  ultimate  condi- 
tioniug  power  of  popular  approval. 


LOCATION  OF   SOVEREIGNTY   IN  BODY  POLITIC       285 

If,  now,  we  admit  that  the  power  of  the  people 
ultimately  conditions  the  actions  of  those  who  gov- 
ern them,  have  we  reached  the  end  of  our  inquiry  ? 
By  no  means.  First  of  all,  the  definite  connotation 
of  the  term  "  People  "  is  to  be  fixed.  If  by  this 
term  we  refer  to  the  sum  of  the  individuals  com- 
posing the  State,  we  have  "  the  State  resolved  into 
its  atoms,  and  supreme  power  ascribed  to  the  un- 
organized mass  or  to  the  majority  of  these  individ- 
uals. This  extreme  radical  opinion  contradicts  the 
very  essence  of  the  State,  which  is  the  basis  of 
Sovereignty."  -^ 

If,  however,  by  the  People  we  refer  to  them  as 
united  and  politically  organized,  we  have  made  no 
advance  in  locating  Sovereignty ;  we  have  only  re- 
peated the  proposition  that  Sovereignty  is  a  neces- 
sary ingredient  of  the  State ;  for  a  people  politically 
organized  is  the  State.  Neither  can  we  say  that  the 
term  "  People "  in  this  connection  refers  to  those 
citizens  actually  voting,  nor  to  the  majority  of 
such;  nor,  much  less,  to  the  representatives  whom 
they  elect.  This  will  not  do.  To  be  sure,  those 
citizens,  who  have  the  privilege  of  voting,  possess 
the  easiest  means  of  exerting  their  influence  over 
the  conduct  of  the  State,  but  it  is  not  upon  their 
consent  alone  that  the  powers  of  the  government 
are  supported.  Even  where  manhood  suffrage  pre- 
vails, the  electorate  composes,  as  a  rule,  not  a  fifth 
part  of  the  population,  and  it  can  hardl}^  be  said 
that  the  wishes  of  the  remaining  four-fifths  do  not 

^  Bluntschli,  Theory  of  the  State,  trans.,  2d  ed.,  p.  497. 


286  THE  NATURE  OF  THE   STATE 

need  to  be  reckoned  upon  in  determining  political 
action.  In  the  case  of  a  revolution,  it  is  never  the 
electors  alone  who  are  able  to  give  to  it  success. 
Back  of  them,  and  adding  to  their  strength,  they 
must  have  the  assistance,  or  at  least  the  passive 
acquiescence,  of  the  great  bulk  of  the  community. 
Even  in  the  exercise  of  their  rights  of  suffrage, 
the  electors  are  to  be  considered  as  selecting  men 
and  measures,  not  according  to  their  own  wish  alone, 
but  according  to  the  desires  of  the  entire  community. 

If,  then,  we  would  speak  of  the  Sovereignty  of 
the  people,  we  can  mean  nothing  more  than  the 
Sovereignty  of  Public  Opinion,  —  that  power  which 
Lieber  defines  as  "  the  sense  and  sentiment  of  the 
community,  necessarily  irresistible,  showing  its  power 
everywhere,"  and  the  power  which  "  gives  sense  to 
the  letter  and  life  of  the  law ;  without  which  the 
written  law  is  a  mere  husk."  ^  Sovereignty  is  thus, 
as  Professor  Woodrow  Wilson  forcibly  puts  it,  reduced 
to  a  "  catalogue  of  influences."  ^ 

Surely,  if  this  be  the  correct  conclusion,  it  is  an 
unsatisfactory  one  from  the  juristic  standpoint,  how- 
over  comforting  it  may  be  to  the  adherents  of  popu- 
lar government.  The  highest  attribute  of  the  State 
— its  Sovereignty — is  thus  upon  analysis  discovered 
to  be  a  power  definite  only  as  to  its  actual  omnipo- 
tence, and  with  no  precise  organs  of  expression.  Fur- 
thermore, the  political  action  of  the  State  in  almost 
all  cases  can  only  be  in  more   or  less  approximate 

1  Political  Ethics,  Chap.  05. 

^  An  Old  Master  and  Other  Essays,  p.  78. 


LOCATION  OF  SOVEREIGNTY  IN  BODY  POLITIC       287 

conformity  to  its  will,  even  in  the  most  popular  of 
governments ;  and  its  influence  is  felt,  for  the  most 
part,  in  only  a  negative  manner,  its  supreme  might 
being  positively  evinced  only  when  demonstrating 
its  ability  to  oppose  or  destroy  existing  political 
conditions  that  have  become  obnoxious  to  it.  If  this 
be  the  nature  of  Sovereignty,  it  would  seem  to 
possess  but  few  qualities  that  would  stamp  it  as  a 
legal  conception. 

But  we  do  not  need  to  take  this  view.  The  entire 
trouble  is,  that  those  who  assume  this  position  are 
led  astray  in  their  search  for  the  ultimate  location  of 
Sovereignty,  and  settle  upon  a  power  that  indeed 
conditions  political  action,  hut  is  not  itself  of  a  legal  or 
civil  nature.  Public  Opinion,  with  no  governmental 
organs  through  which  its  power  may  be  enforced,  is 
certainly  not,  strictly  speaking,  a  civil  power.  The 
mere  fact,  as  above  stated,  that  political  action  rarely 
conforms  exactly  with,  and  is  often  in  direct  op- 
position to  its  desires,  would  seem  to  be  sufficient 
proof  that  it  cannot  be  identified  with  the  State's 
will.  It  is  of  course  a  force  that  must  be  reckoned 
with  by  statesmen  in  determining  political  policies, 
and  thus  conditions  the  direction  and  manner  in  which 
the  power  of  the  State  shall  be  exercised,  but  is  not 
itself  of  the  State.  Sovereignty  is  a  political  term 
and  designates  political  power,  and  true  political 
power  can  be  exercised  by  society  only  in  its  politi- 
cally organized  capacity  ;  that  is,  through  its  estab- 
lished political  agencies.  _--- 

Rousseau  would  say,  however,  that  the  sovereign 


288  THE  NATURE   OF  THE   STATE 

General  Will  has  the  popular  assembly  in  which 
every  citizen  may  participate,  as  an  organ  through 
which  its  command  may  be  expressed.  If,  however,  it 
were  practically  possible  in  any  but  extremely  small 
States,  for  such  a  body  to  be  convened,  there  would 
even  then  be  no  certainty  that  the  commands  of 
such  body  w^ould  exactly  represent  the  General  Will. 
There  is  ever  the  danger  of  such  assembly  being  con- 
trolled by  factions  for  selfish  ends.  Kousseau  him- 
self recognizes  this.  "  If  the  people  being  sufficiently 
informed,"  he  says,  "  deliberates,  and  citizens  have 
no  communication  with  each  other,  —  from  a  great 
number  of  small  differences  w^ill  result  the  General 
Will,  and  the  conclusion  will  always  be  good.  But 
when  they  divide  into  factions  and  partial  associa- 
tions at  the  expense  of  the  whole,  the  will  of  each  of 
these  associations  becomes  general  with  regard  to  its 
members,  and  individual  with  regard  to  the  State ; 
it  may  then  be  said  that  there  are  not  as  many 
voters  as  men,  but  only  as  many  as  there  are  asso- 
ciations. The  differences  become  less  numerous  and 
give  a  less  general  result.  Finally,  when  one  of 
these  associations  is  so  large  as  to  surpass  all  the 
others,  you  no  longer  have  the  sum  of  small  differ- 
ences, but  a  single  difference;  then  there  is  no 
longer  a  General  Will,  and  the  opinion  which  pre- 
vails is  only  an  individual  opinion."  ^  In  other 
words,  says  Rousseau,  given  a  society  of  men,  the 
members  of  which  are  not  only  generally  enlightened 
and  honest,  but  active  in  their  own  political  interests, 
1  The  Social  Contract,  Bk.  II.  Chap.  III. 


LOCATION  OF  SOVEREIGNTY  IN  BODY  POLITIC       289 

and  free  from  factional  associations, — given  such  an 
ideal  community,  then,  and  only  then,  is  there  any 
certainty  of  obtaining  an  expression  of  the  General 
"Will,  even  in  an  assembly  in  which  every  citizen  is 
a  member.  In  fine,  we  must  conclude  that  the 
"General  "Will,"  or  "Public  Opinion,"  or '' Popular 
Sovereignty,"  or  whatever  it  may  be  called,  cannot 
be  said  to  possess  any  one  organ  or  number  of  organs 
through  which  its  wishes  may  obtain  valid,  authorita- 
tive, and  accurate  expression. 

All  that  we  have  actually  proved  as  embraced  in 
the  idea  of  the  so-called  "Sovereignty  of  the  People," 
is  their  "right,"  or  rather  "might,"  of  revolution, — 
a  might  that  follows  from  their  unorganized  mass, 
rather  than  from  their  organized  strength.  But, 
whether  revolutionary  right  or  revolutionary  might, 
in  neither  case  do  there  appear  legal  qualities.  Legal 
rights  and  legal  obligations  are  only  created  and  im- 
posed by  virtue  of  positive  law,  and  such  law  exists 
only  as  an  utterance  of  a  political  body.  By  the 
mere  fact  of  a  people  putting  themselves  in  a  revolu- 
tionary attitude  toward  their  government ;  that  is, 
attempting  the  enforcement  of  their  demands  in 
ways  other  than  those  provided  by  law,  they  are 
placed  outside  of  the  State  so  far  as  such  acts  are 
concerned.  However  proper  their  conduct  from  a 
moral  standpoint,  from  a  legal  standpoint  they  are 
then  acting  not  as  a  body  politic,  but  as  a  mob. 
They  have,  in  fact,  expressly  repudiated  State  agen- 
cies. This,  then,  cannot  be  an  act  of  Sovereignty, 
for  Sovereignty,  as  expressly  defined  and  conceded 


290  THE  NATURE   OF  THE   STATE 

by  all,  is  of  the  State  and  is  possessed  by  a  political 
community,  and  not  by  an  unci  vie  aggregate  of  men. 
Until  a  people  become  politically  organized  there  is 
no  Sovereignty.^ 

^  Thus  says  Bluntschli  in  his  Staatstcorterhuch :  "Es  giebt  keine  Sou- 
veranetdt  der  Geaelhschaft.  Keine  Souverdnetdt  vor  oder  iiher  dem 
Staate.  Die  Souverdnetdt  als  ein  staailicher  zundchst  ein  staatrechtlicher 
Begrijf  ist  durch  die  Existenz  und  durch  die  Verfassung  des  Staates 
bedingt." 

To  the  same  effect  says  Cooley  (^Constitutional  Limitations,  3d  ed. 
p.  598)  :  "  The  voice  of  the  people  in  their  sovereign  capacity  can  only 
be  of  legal  force  -when  expressed  at  the  times  and  under  the  condi- 
tions which  they  themselves  have  prescribed  and  pointed  out  by  the 
constitution,  .  .  .  and  if  by  any  portion  of  the  people,  however  large, 
an  attempt  should  be  made  to  interfere  with  the  regular  working  of 
the  agencies  of  government  at  any  other  time,  or  in  any  other  mode 
than  as  allowed  by  existing  law,  either  constitutional  or  statutory,  it 
would  be  revolutionary." 

According  to  Judge  Jameson,  Sovereignty  resides  in  a  society  only 
as  a  body  politic ;  "  in  the  corporate  unit  resulting  from  the  organiza- 
tion of  many  into  one,  and  not  in  the  individuals  constituting  such 
unit,  nor  in  any  number  of  them  as  such,  nor  even  in  all  of  them, 
except  as  organized  into  a  body  politic  and  acting  as  such "  ( The 
Constitutional  Convention,  §  21).  However,  though  assuming  this 
correct  position,  he  proceeds  to  declare  that  Sovereignty  may  be  ex- 
ercised in  an  extra-governmental  or  revolutionary  manner.  Its  char- 
acteristic as  a  legal  power  is  thus  explicitly  abandoned.  "  Sovereignty," 
says  he,  "  manifests  itself  in  two  ways :  first,  indirectly  through 
individuals  acting  as  agents  or  representatives  of  the  sovereign,  and 
constituting  the  civil  government;  and,  secondly,  directly  by  organic 
movements  of  the  political  society  itself,  without  the  ministry  of 
agents ;  the  movements  referred  to  exhibiting  themselves  either  in 
those  social  agitations,  of  which  the  resultant  is  known  as  public 
opinion,  that  vis  a  tergo  in  all  free  commonwealths,  by  whicli  the 
machinery  of  government  is  put  and  kept  in  orderly  motion ;  or  in 
manifestations  of  original  poicer  by  which  political  or  social  changes 
are  achieved  irregularly,  imder  the  operation  of  forces  wielded  by  the 
body  politic  itself  immediately."  {Idem,  §  23.  Citation  is  made  to 
Lieber'a  I'olilical  Ethics,  Vol.  T.  p.  2.'3G.)  But  wliat  the  tests  are  by 
wliich  "organic  movements"  of  society  are  to  be  distinguished;  how 
Sovereignty,  as  necessarily  inhering  in  a  social  body  only  as  a  political 
body,  and  exercised  as  such,  can  likewise  be  discovered  in  mere  opin- 


LOCATION  OF  SOVEREIGNTY  IN  BODY  POLITIC       291 

If  it  be  necessary  to  make  this  point  still  more 
conclusive,  the  circumstance  may  be  pointed  out  that 
in  all  cases  the  actions  of  the  States  are,  as  a  matter 
of  fact,  largely  determined  and  limited  by  the  claims 
of  other  States,  and  thus  their  independence  practi- 
cally governed  by  influences  identical  in  character 
with  these  exercised  by  the  public  opinion  of  their 
own  citizens.  The  legal,  or  rather  non-legal,  nature 
of  both  are  the  same.  No  greater  validity  can  be 
predicated  of  the  one  than  of  the  other,  yet  even 
Lieber  or  Jameson  would  not  hold  that  Sovereignty 
rests  not  with  the  individual  States,  but  in  the  Com- 
munity of  States. 

Professor  Ritchie,  in  an  article  upon  this  subject,^ 
distinguishes  between  this  power  of  the  people  exer- 
cised by  public  opinion,  which  he  terms  "the  ulti- 
mate political  Sovereignty,"  and  the  highest  political 
power  of  the  State  as  exercised  through  its  legally 
established  organs,  which  he  designates  as  "legal 
Sovereignty."  It  is  undoubtedly  correct  thus  to 
make  this  distinction  if  it  be  seen  fit,  but  to  the 
writer  it  seems  unfortunate  that  the  same  term, 
"  Sovereignty,"  should  be  applied  to  two  forces  so 
radically  different,  even  though  distinguishing  adjec- 
tives be  prefixed.      Is    it  not  better  to  term  such 

ion  or  in  "  irregular "  acts  for  the  achievement  of  social  as  -well  as 
political  changes;  what  valuable  distinction  there  is  between  revolu- 
tionary and  legal  conduct  —  a  distinction  emphasized  throughout  the 
work  ;  —  these  are  questions  that  Judge  Jameson  does  not  attempt  to 
answer.  Of.  his  article  entitled  "Xational  Sovereignty,"  in  the  Pol. 
Sci.  Quar.,  Vol.  Y.  p.  193. 

1  Annals  of  the  Arnerican  Academy  of  Pol.  and  Social  Science,  Janu- 
ary, 1891. 


292  THE  NATURE   OF  THE   STATE 

force  simply  "Public  Opinion"  or  "G-eneral  Will," 
and  to  limit  the  word  "Sovereignty"  to  its  purely 
legal  aj)plication  ? 

In  thus  distinguishing  between  Sovereignty  and 
General  Will  or  Public  Opinion,  between  legal  ab- 
solutism of  the  State  and  its  powers  as  absolutely 
limited  by  political  exigencies,  we  are,  in  fact,  but 
stating  a  result  that  correlates  with  the  position 
which  we  assumed  in  regard  to  the  relation  of  custom 
to  law.  That  is  to  say,  we  have  denied  to  the  people 
a  capacity  for  legal  action  irrespective  of  State 
organs.  As  we  liave  said,  it  is  the  essential  office 
of  representative  or  public  government  to  make  pos- 
sible an  approximately  correct  formulation  of  Public 
Opinion,  and  to  secure  political  action  in  conformity 
thereto.^  But  this  is  not  to  place  the  legal  power  of 
Sovereignty  in  the  community  as  such. 

In  conclusion,  then,  Sovereignty,  though  in  a 
legal  sense  absolute,  is  to  be  considered  in  refer- 
ence to  the  institutions,  the  character  of  the  people 
governed,  and  other  objective  conditions.  While 
force  is  and  always  must  be  an  incident  of  Sov- 
ereignty, the  highest  ideal  of  statesmanship  is  to 
render  the  actual  exercise  of  such  force  as  seldom 
necessary  as  possible,  and  the  extent  to  which 
this   aim  is  attained  will   depend  largely  upon  the 

1  See  the  remarks  of  Dicey  {Laio  of  the  Constitution,  pp.  73-7G), 
according  to  whicli  tlie  function  of  representative  government  is  to 
l)ro(Lice  a  coincidence  between  what  lie  terms  tlie  "external  limits  "  to 
Sovereignty,  arising  from  the  possibility  of  resistance  on  the  part  of 
the  people,  and  the  "internal  limits,"  depending  upon  the  wishes  of 
those  who  wield  the  sovereign  power. 


LOCATION  OF  SOVEREIGNTY  IN  BODY  POLITIC       293 

degree  in  wliich  state  action  corresponds  with  the 
desires  of  Public  Opinion  or  the  General  Will.  As 
says  the  philosopher  whom  we  have  already  had 
occasion  several  times  to  quote,  "  If  once  the  coercive 
power  wliich  must  always  be  an  incident  of  Sover- 
eignty becomes  the  characteristic  thing  about  it  in 
its  relation  to  the  people  governed,  this  must  indicate 
one  of  two  things;  either  that  the  general  interest 
in  the  maintenance  of  equal  rights  has  lost  its  hold 
upon  the  people,  or  that  the  sovereignty  no  longer 
adequately  fulfils  the  function  of  maintaining  such 
rights,  and  thus  has  lost  the  support  derived  from 
the  general  sense  of  interest  in  supporting  it.  .  .  . 
It  is  certain  that  when  the  idea  of  coercive  force  is 
that  predominantly  associated  with  the  law-imposing 
or  law-enforcing  power,  either  a  disruption  of  the 
State  or  a  change  in  the  sources  of  Sovereignty  must 
sooner  or  later  take  place."  ^ 

It  may  now  be  asked  whether  we  have  not  come 
back  to  the  position  of  Austin  as  regards  the  loca- 
tion of  Sovereignty  in  a  definite  portion  of  the  body 
politic.  Not  exactly.  Austin,  with  all  his  logical 
accuracy  and  preciseness  of  definition,  did  not  fully 
distinguish  between  the  legal  sovereign  or  sover- 
eigns, and  those  who,  by  their  suffrages  or  other  less 
direct  influences,  give  to  such  legal  depositaries  of 
Sovereignty  their  powers,  and  maintain  them  in 
their  possession.  The  position  taken  in  this  treatise 
is  that  those  persons  or  bodies  are  the  sovereigns 
who  have  the  legal  power  of  expressing  the  will  of 

1  Green,  Philosophical  Works,  Vol.  II.  p.  410. 


294  THE  NATURE  OF  THE   STATE 

the  State.  Behind  these  persons  we  do  not  as  pub- 
licists or  jurists  need  to  look.  When  we  have  lo- 
cated these  authoritative,  volitional  organs  of  the 
State,  we,  qiia  lawyers,  do  not  need  to  search  further. 
We  leave  to  the  sociologist  or  practical  politician 
the  examination  of  the  nature  and  force  of  Public 
Opinion. 

Austin,  however,  though  ever  avowing  the  deter- 
minateness  of  its  location,  goes  back  of  the  law- 
making bodies,  to  the  electorates,  in  his  search  for 
the  original  abiding  ground  of  the  sovereign  power 
of  making  and  unmaking  laws.  By  so  doing  he 
abandons  the  position  which  he  has  placed  himself 
upon  of  viewing  and  defining  laws  only  from  the 
standpoint  of  their  legal  validity,  and  without  refer- 
ence to  the  ultimate  forces  that  condition  them. 

Following  this  method,  Austin  discovers  the  Sov- 
ereignty in  Great  Britain  to  be  in  the  King,  Lords, 
and  Commons.  But  by  "  Commons  "  he  is  not  satis- 
fied to  mean  the  lower  branch  of  Parliament,  but 
designates  thereby  the  electors  of  the  lower  house. 
"  Speaking  accurately,"  says  he,  '•  the  members  of 
the  commons'  house  are  merely  trustees  for  the  body 
by  which  they  are  elected  and  appointed ;  and  con- 
sequently the  Sovereignty  always  resides  in  the 
Kings  and  the  peers,  with  the  electoral  body  of  the 
commons."  ^  Here,  as  Professor  Ritchie  has  pointed 
out,  he  no  longer  speaks  as  a  lawyer.  "For  a  lawyer 
qua  lawyer  a  law  is  good  law  though  it  were  passed 
by  a  Parliament  which  had  abolished  the  Septennial 

^  The  Province  of  Jxirispriidence  Determined,  ed.  18G1,  p.  201. 


LOCATION   OF   SOVEREIGNTY   IN   BODY  POLITIC        295 

Act  and  had  gone  on  sitting  as  long  as  the  Long 
Parliament,  quite  as  much  as  if  the  law  were  passed 
by  a  newly  summoned  Parliament  of  the  elected 
part  of  which  an  overwhelming  majority  had  been 
returned  expressly  pledged  to  vote  for  this  very  law. 
With  the  wishes  or  feelings  of  the  electors  the  law- 
yer as  lawyer  has  nothing  whatever  to  do,  however 
much  they  may  affect  him  as  a  politician  or  as  a 
reasonable  man."  ^  To  the  same  effect  is  the  dictum 
of  Professor  Dicey,  that  nothing  is  more  certain  than 
that  no  English  judge  ever  conceded,  or  under  the 
present  constitution  can  concede,  that  Parliament  is 
in  any  legal  sense  a  trustee  for  the  electors :  a 
dictum  that  is  conclusively  verified  by  the  powder  of 
Parliament  shown  in  the  Septennial  Act  to  lengthen 
its  own  existence  without  any  reference  whatever 
to  the  voters  by  whom  its  then  members  had  been 
elected  for  a  much  shorter  period.^ 

1  Annals  of  the  Am.  Acad,  of  Pol.  and  Sac.  Science,  January,  1891, 
p.  392. 

^  Law  of  the  Constitution,  4th  ed.  pp.  69-71.  We  may  profitably 
quote  the  following  paragraphs  as  showing  not  only  this  point,  but 
as  illustrating  the  distinction,  that  we  have  above  emphasized  in  this 
chapter,  between  Sovereignty  as  a  purely  legal  conception,  and  as  de- 
noting the  idtimate  conditioning  force  of  public  opinion.  "  It  should, 
however,  be  carefully  noted,"  says  Dicey,  "that  the  term  'Sovereignty,' 
as  long  as  it  is  accurately  employed  in  the  sense  in  which  Austin 
sometimes  uses  it,  is  a  merely  legal  conception,  and  means  simply  the 
power  of  law-making,  unrestricted  by  any  legal  limit.  If  the  term 
*  Sovereignty '  be  thus  used,  the  sovereign  power  under  the  English 
constitution  is  clearly  'Parliament.*  But  the  word  'Sovereignty'  is 
sometimes  employed  in  a  political,  rather  than  in  a  strictly  legal 
sense.  That  body  is  'politically '  sovereign  or  supreme  in  a  State  the 
will  of  which  is  ultimately  obeyed  by  the  citizens  of  the  State.  In 
this  sense  of  the  word,  the  electors  of  Great  Britain  may  be  said  to 
be,  together  with  the  Crown  and  the  Lords,  or  perhaps,  in  strict  accu- 


296  THE  NATURE  OF  THE   STATE 

In  like  manner,  Austin  does  not  discover  legal 
Sovereignty  in  the  United  States,  in  the  legislative 
bodies  of  the  individual  Commonwealths,  or  in  the 
federal  Congress,  or  in  both  combined.  He  sees 
the  legal  competence  of  these  bodies  apparently  lim- 
ited by  written  constitutions,  and  therefore  places 
Sovereignty  in  the  electorates  that  select  the  bod- 
ies by  which  these  written  instruments  may  be 
amended. 

"I  believe,"  says  he,  "that  the  Sovereignty  of 
each  of  the  States,  and  also  of  the  larger  State 
arising  from  the  federal  union,  resides  in  the  States' 
governments  as  forming  an  aggregate  body :  mean- 
ing by  a  State's  government,  not  its  ordinary  legis- 
lature, but  the  body  of  its  citizens  which  appoint  its 
ordinary  legislature,  and  which  the  union  apart  is 
properly  sovereign  therein."  ^  The  same  criticism 
is  here  applicable  to  Austin  that  was  applied  to 
his  location  of  Sovereignty  in  the  English  elector- 
ate. These  positions  of  Austin  are  therefore  unsat- 
isfactory, not  only  from  the  strictly  juristic  stand- 
point, but  they  do  not  accord  with  the  view  of  those 
who  by  Sovereignty  refer  to  the  ultimate  force  of 
Public   Opinion,  —  of   the   General  Will;   for  those 

racy,  independently  of  the  King  and  the  Peers,  the  body  in  which 
sovereign  power  is  vested.  .  .  .  But  this  is  a  political  and  not  a  legal 
fact.  The  electors  can  in  the  long  run  always  enforce  their  will.  But 
the  courts  will  take  no  notice  of  the  will  of  the  electors.  The  judges 
know  nothing  about  any  will  of  the  people  except  in  so  far  as  that 
will  is  expressed  by  an  Act  of  Parliament,  and  would  never  suffer  the 
validity  of  a  statute  to  be  questioned  on  the  ground  of  its  being  passed 
or  being  kept  alive  in  opposition  to  tlie  wislies  of  the  electors." 
1  The  Province  of  J arisprudence  Determined,  ed.  1861,  p.  222. 


LOCATION  OF  SOVEREIGNTY  IN  BODY  POLITIC       297 

who  take  this  latter  view  (and  very  correctly  from 
their  standpoint)  make  the  electorate  but  an  organ 
of  the  whole  body  of  citizens,  by  whom  it  is  influ- 
enced and  controlled  in  many  ways. 

Professor  Dewey,  in  an  article  already  cited,^ 
makes  also  the  criticism  that  this  electorate  is  not 
even  determinate.  His  argument  is  as  follows  :  If 
the  electorate  be  the  sovereign,  then  each  voter  is  a 
sharer  in  the  Sovereignty.  But  what  of  the  voters 
who  prove  to  be  in  the  minority  ?  "  If  we  say  he 
(i.e.  one  of  the  minority)  did  share  in  Sovereignty 
because  he  had  a  right  to  vote,  we  say  Sovereignty 
may  be  exercised  apart  from  the  utterance  of  com- 
mands, indeed,  even  in  opposing  the  fundamental 
command.  But  if  we  say  that,  since  not  participat- 
ing in  the  expression  of  the  supreme  command,  he  is 
not  sovereign,  the  question  arises  by  what  right  he 
voted  at  all." 

This  reasoning  appears  to  us  very  insufficient, 
and  is,  in  fact,  just  as  applicable  to  a  legislative  body 
as  to  a  popular  gathering.  What  of  the  members  of 
the  minority  in  the  English  Parliament  ?  The  fact 
is,  that  when  Austin  or  any  other  writer  refers  to  an 
electorate  as  exercising  Sovereignty,  he,  or  they,  refer 
to  such  an  electorate  as  a  collective  body  of  which 
each  member  possesses  an  indivisible  portion  of  the 
Sovereignty  of  the  whole.  That  is,  that  the  citizen 
shares  in  the  Sovereignty  not  as  an  individual  but  as 
a  member  of  the  whole.     Each  citizen  holds,  as  law- 

1  "  Austin's  Theory  of  Sovereignty,"  Political  Science  Quarterly., 
March,  ISOl. 


298  THE  NATTOE   OF  THE   STATE 

yers  say,  per  tout  only,  and  not  per  my,  as  Pro- 
fessor Dewey  would  seem  to  think.  Rousseau  makes 
this  distinction  very  plain  by  expressly  distinguishing 
between  the  "will  of  all  "  and  the  ''  General  Will."^ 
The  distinction  between  Sovereignty  as  a  juristic 
conception  and  the  ultimate  conditioning  power  of 
popular  opinion,  was,  however,  one  that  was  never 
reached  by  Rousseau,  who  completely  identifies  Sov- 
ereignty with  the  "  General  Will."  It  is  in  conse- 
quence of  this  assumption,  that,  in  searching  for  the 
manner  in  which  this  sovereign  power  may  be 
legally  exercised,  he  is  forced  to  hold  that  "  laws 
being  but  authentic  acts  of  the  General  Will,  the 
sovereign  cannot  act  except  when  the  People  is 
assembled."  ^  And  again,  that  "  Sovereignty  can- 
not be  represented  for  the  same  reason  that  it 
cannot  be  alienated ;  it  consists  essentially  of  the 
General  Will,  and  the  will  cannot  be  represented; 
it  is  the  same  or  it  is  different ;  there  is  no  mean. 
The  deputies  of  the  people  then  are  not,  and  cannot 
be  its  representatives,  they  are  only  its  commission- 
ers ;  they  can  conclude  nothing  definitely.  Any  law 
which  the  people  in  person  has  not  ratified  is  null ; 
it  is  not  a  law."^  Thus  the  position  is  taken  that 
all  authority  exercised  other  than  by  warrant  of 
the  general  assembly  of  the  people  is  illegal,  and  a 
government  thus  acting  has  only  a  de  facto  and  not 
a  (ie  jiwre  existence — a  position  according  to  which 
there  was  not  at  the  time  of  Rousseau's  writing, 

1  The  Social  Contract,  Bk.  II.  Chap.  III. 

2  Idem,  Bk.  III.  Chap.  XII.  »  hlem,  Bk.  III.  Chap.  XV. 


LOCATION  OF  SOVEREIGNTY  EN  BODY  POLITIC       299 

nor  has  there  been  since,  a  State  in  Europe  in  which 
rebellion  would  have  been  an  illegal  act. 

Comparing  these  views  with  those  held  by  Hobbes 
and  Locke,  we  find  that  according  to  the  former  of 
these  writers  a  sovereign  organ,  be  it  a  monarch  or  a 
popular  assembly,  is  made  practically  identical  with 
the  sovereign  State  itself,  and  as  such  incapable  of  le- 
gal limitation.  Thus  in  all  truthfulness  the  absolute 
ruler  might  say  that  L'etat,  cest  moi.  The  agent  is 
identified  with  the  principal,  government  is  confused 
with  the  State,  the  machine  absorbs  that  power  that 
moves  it.  Apart,  however,  from  this  confusion  be- 
tween State  and  Government  Hobbes  developed  a 
substantially  correct  theory  of  law  and  Sovereignty, 
though  he  needlessly  based  it  upon  an  illogical  fic- 
tion. 

Locke,  though  founding  his  system  on  the  same 
fictional  contract,  came  much  nearer  the  comprehen- 
sion of  the  true  nature  of  government,  in  his  decla- 
ration of  its  limited  delegated  character,  and  the 
essentially  representative  capacity  of  all  political 
agents.  It  would  seem  also  at  times  that  he  per- 
ceived the  distinction  between  the  actual  ultimate 
power  of  the  people  to  condition  political  action,  and 
the  legal  or  sovereign  action  of  the  State.  "  And 
thus,"  he  declares,  "  the  community  may  be  said  in 
this  respect  to  be  always  the  supreme  power  but  not 
as  considered  under  any  form  of  government,  be- 
cause this  poiver  of  the  people  can  never  take  place 
till  the  government  he  dissolved"  ^     But  his  precon- 

^  Two  Idealises  on  Civil  Government,  II.  §  119.     Italics  my  own. 


300  THE  NATTJEE  OF  THE   STATE    , 

ceived  ideas  of  natural  rights  and  of  Sovereignty  as 
resting  upon  a  contract  makes  him  speak  in  general 
of  this  ultimate  right  of  the  people  as  something  more 
than  a  mere  moral  right,  and  as  a  power  founded 
upon  mere  might.  For  the  same  reason,  he  does  not 
always  sufficiently  recognize  that  the  State  may  be 
so  organized  as  to  permit  sovereign  action  greatly 
opposed  to  public  will  and  to  public  interest,  and  yet 
strictly  constitutional  and  legal.  Thus,  in  consider- 
ing what  is  to  be  done  in  case  an  executive  to  whom 
has  been  entrusted  the  power  of  calling  together  the 
legislative  branch,  should  refuse  to  exercise  such 
power,  to  the  detriment  of  the  people,  —  such  action 
he  describes  as  "contrary  to  the  trust  put  in  him 
that  does  so,"  and  as  "  a  state  of  war  with  the  peo- 
ple who  have  a  right  to  reinstate  their  legislative  in 
the  exercise  of  their  power."  ^ 

Here  the  theory  of  a  contract  between  governed 
and  governing  again  crops  out.  But  just  as  in  our 
discussion  of  the  origin  of  the  State  we  demonstrated 
the  invalidity  of  the  contract  theory,  so  likewise  is  it 
necessary  to  refuse  to  characterize  as  such  the  rela- 
tion between  the  people  and  their  rulers.  Govern- 
mental agents  exercise  a  power  delegated  or  granted 
to  them  by  the  State,  and  not  one  created  by  a  join- 
ing of  their  wills  with  those  of  the  subjects.  The 
only  will  concerned  is  that  of  the  State.  Public 
officials  are,  in  other  words,  agents  of  the  State,  not 
of  the  People.  They  have  no  relation  to  the  People 
as  such,  and   therefore  there   can  be    no  breach  of 

^  Two  Treatises  of  Government,  II.  §  155. 


LOCATION  OF  SOVEREIGNTY  IN  BODY  POLITIC       301 

contract  with  them  in  whatever  manner  they  may 
exercise  their  power.  If  they  exceed  their  legal 
competence,  or  are  in  any  way  guilty  of  non-feasance 
or  malfeasance  of  office,  they  are  punishable  only  by 
the  State.  Therefore,  any  action  of  theirs,  however 
oppressive,  does  not,  as  Locke  would  say,  ipso  facto 
deprive  them  of  political  power,  and  place  them  in 
a  state  of  war  with  their  former  subjects.  Such 
action  is  not  even  illegal  if  within  their  competence, 
and  is  as  fully  valid  as  would  be  the  most  beneficent 
measure.  If  ultra  vires,  however,  the  action  is  of 
course  illegal  and  not  an  act  of  the  State,  but  of 
the  official  as  a  private  individual,  and  one  for  which 
he  is  personally  responsible.  But  such  illegality  ex- 
tends only  to  the  particular  act  itself.  It  has  no 
influence  over  the  general  public  or  sovereign  status 
of  such  official.  Rousseau  is  thus  perfectly  correct 
in  denying  that  government  is  established  by  a 
contract. 

The  assertion  that  "governments  are  instituted 
among  men,  deriving  their  just  powers  from  the  con- 
sent of  the  governed,"  as  it  appears  in  our  Declara- 
tion of  Independence,  and  in  substantially  similar 
form  in  most  of  the  constitutions  of  our  Common- 
wealths, and  as  constantly  repeated  by  our  publicists 
and  declared  by  our  courts,  has  no  other  meaning 
than  that  the  conduct  of  public  officials  should  be  as 
nearly  as  possible  in  accordance  with  the  wishes  of 
the  governed ;  not  that  the  legal  validity  of  gov- 
ernmental action  is  determined  according  to  such  a 
standard.     That  standard  is  determined  by  the  exist- 


302  THE  NATUKE  OF  THE   STATE 

ing  prescribed  forms  for  determining  the  will  of  the 
State. 

The  value  of  constitutional  government  is  not  that 
it  places  Sovereignty  in  the  hands  of  the  people, 
but  that  it  prescribes  definite  ways  in  which  this 
sovereign  power  shall  be  exercised  by  the  State. 
The  value  of  j^opular  government  is  that  it  provides 
the  means  through  which  the  wishes  of  the  people 
may  be  known  and  felt,  and  that  thus  the  conduct  of 
a  State  may  be  brought  into  conformity  thereto. 

Constitutional  government  thus  protects  the  citi- 
zen from  arbitrary  action  on  the  part  of  the  State : 
popular  government  secures  to  him  the  probability 
that  his  wishes  and  interests  will  be  considered 
therein. 

Understanding  now  by  Sovereignty  a  power  which 
is  capable  of  exercise  only  through  existing  govern- 
mental agencies,  it  necessarily  follows  that  this 
supreme  power  is  exhibited  whenever  the  will  of 
the  State  is  expressed.  In  fact,  it  is  almost  correct 
to  say  that  the  sovereign  will  is  the  State,  that  the 
State  exists  only  as  a  supreme  controlling  will,  and 
that  its  life  is  only  displayed  in  the  declaration  of 
binding  commands,  the  enforcement  of  which  is  left 
to  mere  executive  agents.  These  executive  agents, 
while  acting  as  such,  have  no  will  of  their  own,  and 
are  but  implements  for  the  performance  of  that  will 
which  gives  to  them  a  political  and  legal  authority. 

This,  then,  locates  the  exercise  of  Sovereignty  in 
the  law-making  bodies.  By  whomsoever,  or  whatso- 
ever body,  therefore,  the   will    of  the    State   is   ex- 


LOCATION  OF   SOVEREIGNTY  IN  BODY  TOLITIC       303 

pressed,  and  law  created,  there  we  have  Sovereignty 
exercised.  If  we  distinguish  between  executive, 
judicial  and  legislative  departments  of  the  State,  it 
is  in  this  last-named  department  that  the  exercise  of 
Sovereignty  rests.  As  Locke  correctly  maintains, 
"  In  all  cases  whilst  the  government  subsists,  the 
legislative  is  the  supreme  power.  For  what  can 
give  laws  to  another  must  needs  be  superior  to  him, 
and  since  the  legislative  is  no  otherwise  legislative 
of  the  society  bat  by  the  right  it  has  to  make  laws 
for  all  its  parts,  and  every  member  of  the  society, 
prescribing  rules  to  their  actions,  and  giving  power 
of  execution  where  they  are  transgressed,  the  legis- 
lative must  needs  be  supreme,  and  all  other  powers 
in  any  members  or  parts  of  the  society  derived  from 
and  subordinate  to  it."  ^ 

The  only  point  that  we  must  remember  is  that 
the  term  ''  legislative "  must  not  be  so  narrowly 
construed,  as  to  limit  its  application  to  those 
bodies  by  which  formal  statutory  enactments  are 
made.  In  so  far  as  the  chief  executive  of  the  State 
has  the  ordinance  power,  he  may  express  the  sover- 
eign will  and  therefore  exercise  Sovereignty.  As  we 
know,  this  power  was,  in  former  times,  very  exten- 
sive in  England,  and  still  persists  to  a  considerable 
descree  in  all  modern  States.  The  entire  constitu- 
tional  history  of  England  is  in  fact  but  little  more 
than  a  record  of  the  manner  in  which  this  royal 
power  of  law-making  has  been  curtailed,  and  the 
legislative   power    of    Parliament   taken   its    place. 

1  Two  Treatises  of  Government,  II.  §  150. 


304  THE  NATURE   OF  THE   STATE 

Again,  constitutional  conventions,  in  so  far  as  they 
have  the  direct  power  of  creatmg  constitutional 
law,  exercise  this  sovereign  power.  Finally,  in 
so  far  as  courts  are  the  organs  of  the  State  for 
the  creation  of  law,  they  express  the  will  of  the 
State  and  hence  exercise  Sovereignty.  In  so  far, 
however,  as  their  work  is  merely  interpretative 
of  existing  law,  they  of  course  do  not  exercise  this 
power.  It  is  true  that,  strictly  speaking,  judges  are 
not  supposed  to  exercise  any  function  other  than 
the  interpretative  one,  but  as  a  matter  of  fact,  as 
we  have  already  seen,  they  do  necessarily  go  beyond 
this  and  actually  create  law. 

Now  it  may  be  said  that  courts  are  able  to  do  this 
only  by  the  acquiescence  of  the  legislative  body, 
which  may  negative  by  statute  the  principles  which 
they  have  declared ;  and  hence  that  they  act  but  as 
agents  of  the  legislature  proper.  In  the  same  way, 
it  may  also  be  said  that  the  ordinary  legislature 
exercises  its  powers  only  by  right  of  constitutional 
law,  and  that,  therefore,  it,  in  turn,  but  voices  the 
will  of  those  that  establish  this  fundamental  law. 
This  is  certainly  true,  and  therefore  in  any  given 
State  it  may  be  said,  in  one  sense,  that  that  organ 
possesses  the  final  sovereign  power,  which  creates 
those  laws  that  organize  the  State,  and  distributes 
its  powers  among  its  several  governmental  agents. 
In  a  measure  we  have  already  discussed  this  point  in 
our  consideration  of  the  nature  of  constitutional  pro- 
visions as  compared  with  that  of  other  forms  of  law. 
In  a  country  like  England,  such  a  supreme   body 


LOCATION  OF  SOVEREIGNTY  IN  BODY  POLITIC        305 

•would  be  the  Parliament,  but  in  those  countries 
where  government  rests  upon  written  instruments, 
it  would,  according  to  this  view,  be  with  those  organs 
that  have  the  power  to  modify  such  instruments. 
But  in  reference  to  this  position  it  may  be  said,  in 
the  first  place,  that  such  organs  may  be  brought  into 
action  only  at  long  intervals,  or  conceivably  never,  if 
society  remains  in  a  sufficiently  stationary  condition.^ 
Therefore,  according  to  such  a  view,  we  would  be 
obliged  to  consider  this,  the  very  essence  of  the 
State,  its  life  and  its  highest  power,  as  continuously 
latent.  In  the  second  place,  the  question  properly 
arises,  as  to  the  source  of  the  power  of  these  organs 
thus  to  create  constitutional  laws,  and,  in  order  to 
answer  this,  we  are  brought  back,  as  we  have  already 
seen,  to  the  original  creation  of  the  State,  and  to  the 
establishment  of  its  first  government. 

The  fact  is,  however,  that  when  as  jurists  or  pub- 
licists we  seek  for  the  location  of  the  sovereign 
power  in  the  body  politic,  we  are  concerned  with  the 
State  as  it  then  is  and  as  actually  organized.  In 
pursuit,  therefore,  of  this  aim  we  have  only  to  find 
that  organ  or  those  organs  that  may  express  the 
State's  will.  The  problem  does  not  involve  the 
question  of  the  ultimate  source  whence  has  been 
obtained  by  these  organs  the  volitional  power  that 
they  exercise.  That  is  a  question  which  we  have 
already  attempted  to  explain  in  our  consideration  of 

1  For  example,  the  present  constitution  of  Belgium,  though  pro- 
vided with  an  amending  clause,  was  not  altered  for  more  than  fifty 
years. 

X 


306  THE   NATURE    OF   THE   STATE 

the  oria^in  of  the  State  and  of  its  right  to  be.     Our 


^& 


task  here  is,  as  jurists,  to  find  what  person  or 
persons  here  and  now  have  the  power  of  giving 
expression  to  rules  of  conduct  that  will  be,  if  nec- 
essary, coercively  enforced  by  the  political  power. 
The  only  truly  sovereign  act,  therefore,  that  may 
be  performed  by  the  People,  as  such,  is  the  original 
creative  act  by  which,  at  the  very  inception  of  the 
State's  life,  they  are  to  be  conceived  as  justifying 
the  existence  and  the  powers  of  those  organs  that 
provided  for  its  more  permanent  organization.  The 
State  once  equipped  with  governmental  machinery, 
political  Sovereignty  may  henceforth  be  exercised 
only  through  the  means  that  it  provides. 

As  we  have  already  said,  the  electorate  is  to 
be  distinguished  from  the  People.  There  are  in- 
stances in  which  this  former  body  may  act  as  an 
organ  of  the  State  for  the  exercise  of  its  Sover- 
eignty. This  happens  whenever  there  exists  a  pro- 
vision according  to  which  law  may  be  created  by 
a  referendum  or  other  method  of  ^j/e&isc^^e.  When 
so  called  upon  for  its  vote,  the  Electorate  is  to  be 
considered  as  ad  hoc  a  legislative  body.  Of  course, 
in  those  cases  where  a  vote  of  the  people  is  had 
merely  for  the  purpose  of  better  discovering  what 
the  public  sentiment  is  upon  a  given  proposal,  and 
without  the  power  of  such  a  vote  itself  to  give  a 
legal  validity  or  non-validity  to  the  proposal,  we  do 
not  liave  the  electorate  exercising  the  law-making 
power.  Nor  can  we  consider  the  electors  as  exer- 
cising such  power  in  the  selection  of  pubUc  officials. 


LOCATION  OF  SOVEREIGNTY  IN  BODY  POLITIC       307 

That  is  but  a  popular  method  of  appointment,  and 
appointment  to  office  is  purely  an  executive  act. 
That  only  is  a  legislative  act  which  creates  legal 
rights,  and  determines  what  shall  be  the  legal 
competences  of  public  officials  when  appointed. 

Thus  in  general  we  do  not  regard  the  purely 
executive  branches  of  the  government  as  exercising 
Sovereignty,  because  they  are  not  organs  of  volition. 
Their  activities  are  limited  simply  to  the  enforce- 
ment of  the  sovereign  will  when  declared.  Like- 
wise, as  said,  the  activities  of  judicial  tribunals  are 
excepted  from  sovereign  acts,  in  so  far  as  they 
are  concerned  simply  with  the  interpretation  and 
application  of  existing  laws.  \, 

To  repeat,  then,  in  conclusion ;  all  organs  through 
which  are  expressed  the  volitions  of  the  State,  be 
they  parliaments,  courts,  constitutional  assemblies, 
or  electorates,  are  to  be  considered  as  exercising 
sovereign  power,  and  as  constituting  in  the  aggregate 
the  depository  in  which  the  State's  Sovereignty  is 
located. 

Professor  "VVoodrow  Wilson,  in  the  essay  already 
quoted,  places  the  exercise  of  Sovereignty  in  the 
legislative  body,  but  limits  this  term  to  the  formal 
law-making  organ  of  the  government,  as,  for  ex- 
ample, the  Congress  in  the  United  States.  Thus  as 
he  forcibly  and  correctly  says:  "Sovereignty  is  the 
daily  operative  power  of  framing  and  giving  efficacy 
to  laws.  It  is  the  originative,  directive,  governing 
power.  It  lives;  it  plans;  it  executes.  It  is  the 
organic  organization  by  the    State    of   its   law   and 


308  THE   NATURE   OE  THE   STATE 

policy ;  and  the  sovereign  power  is  the  highest  origi- 
native organ  of  the  State.  It  is  none  the  less  sover- 
eign because  it  must  be  observant  of  the  preferences 
of  those  whom  it  governs.  The  obedience  of  the 
subject  has  always  limited  the  power  of  the  sover- 
eign." The  subsequent  text  shows,  however,  that 
the  term  "  law-making  body  "  is  to  be  strictly  con- 
strued, and  that  even  in  the  case  of  constitutional 
law  adopted  by  popular  vote,  the  People,  when  so 
voting,  are  not  giving  voice  to  a  sovereign  will.  In 
fact,  as  Professor  Wilson  holds  in  the  next  para- 
graph, written  constitutional  law  is  not  really  the 
utterance  of  a  sovereign  at  all,  but  "covenants  of 
a  community "  and  "  only  very  formal  statements 
of  standards  to  which  the  people,  upon  whom  gov- 
ernment depends  for  support,  will  hold  those  who 
exercise  the  sovereign  power."  ^  The  inference  from 
this  would  of  course  be  that  so-called  constitutional 
law  is  not,  strictly  speaking,  law,  for  it  cannot  be 
law  if  not  an  utterance  of  the  sovereign  will,  or  if 
it  partake  of  a  contractual  character. 

In  substance.  Professor  Wilson's  view  is  substan- 
tially the  same  as  that  of  Locke,  who,  as  shown  by 
the  quotations  which  we  have  made  in  this  and 
previous  chapters,  maintains  both  the  contractual 
nature  of  fundamental  law  and  the  sovereign  char- 
acter of  the  formal  legislative  body  in  a  de  facto 
government. 

'^  An  Old  Master  and  Other  Essays,  p.  88. 


CHAPTER   XII 

THE    AIMS    OF    THE    STATE 

The  discussion  thus  far  had  concerning  the  condi- 
tions that  necessitate  the  establishment  of  some  sort 
of  public  control  over  the  individual,  has,  at  the  same 
time,  indicated  in  a  general  way  the  purposes  for 
which  the  State  exists.  Legally,  as  we  have  seen, 
the  State  is  omnipotent ;  but  how  much  of  this  legal 
potentiality  shall  be  actualized  obviously  depends 
upon  the  aims  that  are  sought  to  be  realized. 

In  determining  the  aims  of  the  State,  it  is  plain 
that  we  shall  have  to  make  a  distinction  between 
what  may  be  termed  the  true  or  highest  conceivable 
purposes  that  may  be  subserved  by  the  State's  exist- 
ence, and  the  aims  of  a  given  State  that  are  practi- 
cally obtainable  under  given  objective  conditions  of 
civilization.  In  a  treatise  of  such  a  nature  as  is  the 
present  one,  it  is  evident  that  a  consideration  of  the 
facts  and  principles  connected  with  this  second  branch 
of  the  inquiry  cannot  be  considered.  Such  a  study 
would  belong  rather  to  a  work  upon  practical  politics. 
Our  inquiry  will  therefore  be  concerned  rather  with 
the  aim  of  the  State  in  general ;  that  is,  with  the 
question  of  the  character  of  the  functions  for  the 
performance  of  which  the  State  is  essentially  and 
peculiarly   adapted,  and   the  aims  which,  according 

309 


310  THE  NATURE   OF  THE   STATE 

to  our  conception  of  the  highest  good  of  humanity, 
it  seems  desirable  should  be  obtained.  It  is  to  be 
remembered,  however,  that  this  conception  is  one 
that  must  necessarily  be  based  upon  the  study  of 
present  and  past  social  conditions  and  tendencies. 
Therefore,  just  as  our  view  differs  from  those  views 
that  have  been  held  in  former  periods  of  history 
(or  which  under  the  then  conditions  of  society  could 
rationally  have  been  held),  so  too,  in  the  years  to 
come,  such  may  be  the  nature  of  developed  condi- 
tions of  life  (the  character  of  which,  our  limited 
faculty  of  prevision  prevents  us  from  discovering) 
that  our  conception  of  what  is  either  desirable  or 
attainable  will  be  so  altered  that  the  ideal  aim  of 
the  State  will  be  otherwise  formulated  than  as  here 
stated. 

Essential  Functions  of  the  State.  —  The  fact  that 
the  exercise  of  a  power  by  a  State  is,  pro  tanto,  a 
limitation  of  the  freedom  of  action  of  the  individual, 
necessarily  brings  the  interests  of  the  two  into  fre- 
quent opposition,  and,  in  each  particular  instance,  the 
question  resolves  itself  into  the  proper  balancing  of 
them. 

It  is  admitted  by  all  that  the  State  should  possess 
powers  sufficiently  extensive  for  the  maintenance  of 
its  own  continued  existence  against  foreign  interfer- 
ence, to  provide  the  means  whereby  its  national  life 
may  be  preserved  and  developed,  and  to  maintain  in- 
ternal order,  including  the  protection  of  life,  liberty, 
and  property.    These   have  been  designated  the  es- 


THE  AIMS  OF  THE  STATE  311 

sential  functions  of  the  State,  and  are  such  as  must 
be  possessed  by  a  State,  whatever  its  form. 

The  particularity  with  which  it  is  necessary  that 
the  control  of  the  State  should  be  exercised  in  regard 
to  these  essential  matters,  and  especially  in  regard 
to  those  that  have  to  do  with  the  definition  and 
protection  of  private  rights,  is  largely  determined 
by  the  character  of  the  people  governed,  and  by  their 
state  of  civilization. 

The  primary  purpose  of  the  State  is  undoubtedly 
that  of  keeping  the  peace  between  individuals,  and, 
in  the  first  stages  of  barbarism,  this,  together  with 
that  of  offence  and  defence  against  other  tribes,  is 
almost  its  sole  aim.  As  Bagehot  has  pointed  out, 
in  his  Physics  and  Politics,  in  these  early  times  the 
quantity  of  government  is  much  more  important 
than  its  quality.  That  which  is  wanted  is  a  com- 
prehensive rule  that  shall  bind  men  together  and 
make  them  act  in  accordance  with  some  definite  rule 
of  conduct.  "  What  this  rule  is  does  not  matter  so 
much.  A  good  rule  is  better  than  a  bad  one,  but 
any  rule  is  better  than  none."  Thus  this  urgent 
necessity  for  a  public  control  of  some  sort  or  other 
leaves  but  little  room  for  the  freedom  of  the  indi- 
vidual,—  a  freedom  which,  indeed,  the  individual 
has  not  yet  learned  to  desire,  or  properly  to  exercise 
should  he  possess  it.  The  variety  of  the  powers 
that  are  exercised  in  this  stage  by  the  ruling  author- 
ity is  not,  in  actual  practice,  so  great ;  but  the  rules 
that  define  the  scope  and  manner  of  exercise  of  this 
authority  are  so  general  and  indefinite  in  character 


312  THE  NATURE   OF  THE   STATE 

that  in  almost  no  direction  does  the  individual  possess 
any  guarantee  against  State  molestation. 

As  civilization  advances,  however,  not  only  does 
the  orderly  habit  of  the  people  increase,  but  their 
moral  qualities  become  more  developed.  The  dis- 
tinction between  right  and  wrong  becomes  more 
clearly  recognized,  and  principles  of  justice  are 
more  frequently  followed  without  reference  to  the 
sanction  of  the  State.  The  feeling  of  self-depen- 
dence arises,  the  desire  for  a  certain  latitude  of 
action  uncontrolled  by  the  powers  of  the  State  comes 
into  being,  and  thus,  by  degrees,  the  arbitrary  and 
extensive  control  of  the  State  becomes  irksome. 
Thus  arises  a  struggle  between  authority  and 
liberty  —  a  struggle  that  has  continued  and  will 
probably  continue  throughout  all  history. 

This  struggle,  it  is  to  be  remarked,  is  of  a  twofold 
nature:  First,  to  secure  to  the  individual  a  certain 
field  in  which  he  shall  be  free  to  act  as  he  will,  with- 
out interference  either  by  the  political  power  or  by 
private  individuals.  Secondly,  to  establish  general 
rules  according  to  which  the  functions  that  are  given 
to  government  shall  be  exercised ;  that  is,  to  substi- 
tute for  the  arbitrary  and  uncertain  action  of  govern- 
ment a  more  or  less  certain  and  uniform  regulation 
of  public  affairs.  Neither  one  of  these  aims  is  neces- 
sarily bound  up  in  the  other.  Each  is  separately 
obtainable.  We  thus  distinguish  between  political 
freedom  and  individual  freedom.  The  former 
refers  to  the  extent  to  which  the  people  partici- 
pate  generally  in  the    management   of    the  State, 


THE   AIMS   OF  THE   STATE  313 

or  at  least  dictate  the  manner  in  which  its  powers 
shall  be  exercised.  The  latter  has  to  do  with  the 
extent  to  which  private  rights  of  life,  liberty  and 
property  are  secured. 

Thus,  for  example,  under  the  Roman  Empire  there 
was  little  political  freedom,  while  individual  rights 
were,  as  a  rule,  ample  and  well  protected.  On  the 
other  hand,  a  much  higher  degree  of  political  free- 
dom existed  among  the  early  Teutonic  tribes,  with 
a  far  smaller  protection  to  private  rights.  It  is  thus 
possible,  also,  that  in  the  most  popular  of  govern- 
ments, individual  rights  may  not  be  well  respected. 
Some  go  to  the  extent  of  asserting,  indeed,  that 
under  such  a  rule  they  are  not  as  well  respected 
as  they  are  under  monarchial  forms  of  control.  As 
examples  of  this  fact  they  cite  the  various  Irish 
Land  Acts  of  the  British  Parliament  of  recent 
years,  by  which  rights  of  landlords  have  been 
violated  and  certain  amounts  of  their  rents  arbi- 
trarily confiscated.  Thus  the  Arrears  of  Rent  Act 
of  1882  provides  in  certain  cases  for  the  payment  of 
one-half  of  the  arrears  of  rent  by  a  land  commis- 
sion whereby  the  other  half  is  extinguished.  Other 
acts  interfere  generally  with  the  right  of  contract, 
and  remove  from  the  parties  interested  the  power 
of  arranging  terms,  and  vest  it  in  the  government. 
In  our  own  country  the  large  amount  of  the  State 
legislation  directed  to  the  regulation  of  labor  and  to 
the  promotion  of  morality  is  pointed  to,  which,  it  is 
asserted,  is  of  this  nature.  It  scarcely  need  be  said 
that  this  legislation  is  not  to  be  considered  as  ;per 


314  THE  NATURE   OF  THE   STATE 

se  inadvisable,  any  more  than  it  is  to  be  absolutely 
maintained  that  economic  and  political  exigencies 
have  not  demanded  English  legislation  regarding 
"  landlordism "  in  Ireland.  The  only  point  here 
made,  is  concerning  the  character  of  such  legisla- 
tion as  regards  the  general  insecurity  of  individual 
rights. 

From  the  nature  of  the  case,  there  are  no  precise 
limits  that  can  be  placed  to  the  extent  to  which 
a  popularly  organized  government  may  go  in  the 
diminution  of  individual  freedom ;  and  we  may  find 
it  necessary  to  say  a  few  words  further  upon  this 
subject  in  the  concluding  chapter,  in  which  we  shall 
consider  the  alleged  inherent  tendency  of  democracy 
to  establish  a  "tyranny  of  the  majority."  In  a 
general  way  we  may  say,  however,  that  it  is  the 
aim  of  constitutional  government  to  obtain  political 
freedom,  and,  at  the  same  time,  by  the  restrictions 
placed  upon  the  power  of  government,  especially  by 
those  contained  in  the  so-called  "bills  of  rights,"  to 
protect  mdividual  liberty. 

The  boundary  line  between  the  two  principles  of 
civic  liberty  and  of  authority  has  varied  with  social 
conditions.  When  authority  has  trenched  upon  the 
domain  claimed  for  liberty,  the  people  have  been 
oppressed,  and  despotism  has  been  the  result.  When 
freedom  of  the  individual  has  exceeded  its  proper 
limits,  license  has  been  the  result,  and  the  stability  of 
the  State  has  been  endangered.  Nations  have  thus 
ever  oscillated  between  governmental  oppression  and 
individual  license,  and  the  great  political  problem  of 


THE   AIMS   OF   THE   STATE  315 

all  ages  has  been  to  determine  the  proper  boundary 
line  between  the  two :  to  give  to  the  people  all  the 
liberty  that  they  are  capable  of  enjoying,  without  de- 
stroying the  stability  and  the  efficiency  of  the  State. 

While  it  is  thus  seen  that  in  a  sense ''liberty " 
and  "authority"  are  contradictory  terms,  as  com- 
prehending domains  of  activities  that  are  mutually 
exclusive,  and,  therefore,  that  the  extension  of  the 
one  is  the  corresponding  limitation  of  the  other ;  at 
the  same  time,  the  distinction  that  we  have  made 
between  political  and  individual  freedom  indicates 
that  they  are  in  fact  to  a  considerable  extent  rel- 
ative. That  is,  that  it  is  only  through  the  ex- 
isience  of  a  certain  amount  of  public  authority, 
that  any  personal  freedom  of  action  or  liberty 
is  secured.  As  Rousseau  says,  "What  man  loses 
by  the  social  contract  is  his  natural  liberty  and  an 
unlimited  right  to  anything  that  tempts  him  wliich 
he  can  obtain ;  what  he  gains  is  civil  liberty  and 
the  ownership  of  all  he  possesses.  .  .  .  We  must 
distinguish  the  natural  liberty,  which  has  no  limits 
but  the  strength  of  the  individual,  from  civil  liberty, 
which  is  limited  by  the  general  will ;  and  possession 
which  is  only  the  effect  of  the  force  and  right  of  the 
first  occupant,  from  the  ownership  which  is  founded 
only  upon  a  positive  title."  ^  / 

Without  any  authority  whatever,  the  State  ceases 
to  exist,  and  there  is  then  no  means  whereby  the  sanc- 
tions of  law  may  be  enforced.  In  fact,  no  legal  code 
of  conduct  can  be  said  to  exist.     It  is  only  when  the 

1  The  Social  Contract,  Bk.  I.  Chap.  VIU. 


316  THE  NATURE  OF  THE   STATE 

State  lays  down  and  enforces  general  rules  of  con- 
duct, that  the  individual  is  protected  m  the  exercise 
of  that  freedom  of  action  which  is  left  to  him.  Public 
laws  are  necessarily  of  a  general  character,  and  within 
the  limits  that  they  set,  a  field  of  activity  is  created 
within  which  the  freedom  of  the  individual  is  pro- 
tected. Thus,  laws  regulating  the  holding  and  trans- 
ference of  property  defend  the  people  in  the  possession 
of  their  wealth  and  its  use  and  consumption.  Gen- 
eral laws  regulating  contract,  provide  the  individual 
with  a  protection  under  which  he  may  enter  into 
contractual  relations  with  his  neighbors,  with  the 
assurance  of  having  his  rights  protected.  Penal  laws, 
and  their  enforcement,  protect  both  the  life  and  the 
property  of  the  person,  without  which  freedom  would 
be  either  impossible  or  worthless.  The  sum  of  the 
rights  thus  secured  to  men  tlu-ough  the  State,  consti- 
tutes their  civic  freedom,  and  all  that  can  be  demanded 
from  the  individualistic  standpoint  is  that  the  govern- 
mental authority  be  exercised  in  as  general  a  manner, 
and  to  as  small  an  extent,  as  is  compatible  with  the 
capacity  of  the  people  for  the  proper  exercise  of  the 
freedom  of  action  that  is  thereby  reserved  to  them. 

But  this  is  just  the  point.  Upon  what  general 
principles  is  the  line  to  be  drawn  between  public 
control  for  the  public  good,  and  individual  freedom 
for  individual  good  ? 

The  question  has  often  been  raised  whether  the 
State  is  only  a  means  to  an  end  or  an  end  in  itself. 
Either  position  may  be  taken  according  to  thi 
standpoint  from  which  the  State  is  viewed.     Con- 


THE  AIMS  OF  THE   STATE  317 

sidered  from  the  purely  individualistic  standpoint 
the  State  is  nothing  more  than  a  means  to  an 
end,  namely,  the  instrumentality  through  which 
the  highest  possible  development  of  humanity  is 
obtained.  But,  viewed  as  having  an  existence  apart 
from  the  individual,  and  as  related  to  its  citizens, 
who  have  no  existence  as  citizens,  except  as  mem- 
bers of  the  body  politic,  the  State  is  of  course  an 
end  in  itself.  This  distinction  between  members  of 
a  community  considered  as  individuals  and  as  citizens 
we  have  already  mentioned.  Bluntschli  is  therefore 
right  when  he  says,  "  On  the  one  hand  it  (the  State) 
is  a  means  for  the  advantage  of  the  individuals  who 
compose  it.  From  another  point  of  view  it  has  an 
end  in  itself,  and  for  its  sake  the  individuals  are  subor- 
dinate, and  bound  to  serve  it.  .  .  .  Just  as  the  nation 
( Volk)  is  something  more  than  the  sum  of  persons 
belonging  to  it,  so  the  national  welfare  is  not  the 
same  as  the  sum  of  individual  welfares.  It  is  true 
that  a  close  relationship  exists  between  the  two,  and 
that  they  usually  rise  and  fall  together.  If  the  in- 
dividual welfare  of  the  majority  is  diminished,  that 
of  the  State  is  usually  suffering  from  serious  evils. 
But  the  lines  and  direction  of  the  two  are  not  always 
parallel.  Sometimes  they  cross  each  other,  and 
sometimes  they  are  altogether  separate.  Every  now 
and  then  the  State  is  compelled,  either  for  its  o^\ti 
preservation,  or  in  the  interest  of  future  generations, 
to  make  heavy  demands  from  its  present  members, 
and  to  impose  weighty  burdens  upon  them.  It  some- 
times happens,  also,  that  the  needs  of  individual  wel- 


318  THE  NATUEE   OF   THE   STATE 

fare  call  for  extraordinary  aid  and  support  from  the 
State  which  thus  incurs  serious  obligations."  ^ 

The  relation  between  individual  and  general  inter- 
est not  being  capable  of  precise  statement,  men  differ 
in  their  opinions  not  only  as  to  the  practical  possibility 
of  obtaining  certain  results  through  governmental 
action,  but  as  to  the  desirableness  of  such  action, 
even  when  such  results  are  practically  obtainable. 
We  may  roughly  divide  the  views  upon  this  question 
into  four  classes  :  (1)  the  anarchistic,  (2)  the  indi- 
vidualistic or  laissez  faire,  (3)  the  common  welfare, 
(4)  the  socialistic  and  communistic. 

Anarchistic.  —  The  anarchistic  view  illustrates  the 
logical  extreme  of  individualism,  according  to  which 
all  government  is  considered  not  only  essentially  an 
evil,  but  an  unnecessary  evil.  As  defined  by  Mr. 
Huxley,  anarchy  is  that  form  of  society  "in  which 
the  rule  of  each  individual  by  himself  is  the  only  gov- 
ernment the  legitimacy  of  which  is  recognized.  .  .  . 
Which  abolishes  collective  government,  and  trusts  to 
the  struggle  for  existence  modified  by  such  ethical 
and  intellectual  considerations  as  may  be  freely  rec- 
ognized by  the  individual,  for  the  modus  vivendi  in 
which  freedom  remains  intact,  except  so  far  as  it  may 
be  voluntarily  limited."  ^ 

The  argument  of  those  who  hold  this  extreme  neg- 
ative view  as  to  the  proper  province — or  rather  as  to 
the  no  province  at  all  —  of  the  State,  is,  that  reason 

1  Theonj  of  the  Slate,  trans.,  2d  ed.,  pp.  307,  308. 

2  "  Government :  Anarchy  or  Regimentation,"  Collected  Essays, 
Vol.  I.  pp.  393  and  419. 


THE  AIMS   OF  THE   STATE  319 

will  urge  the  orderly  minded  majority  to  combine 
against  the  disorderly  disposed  minority  to  secure 
justice  and  order.  Thus,  for  instance,  they  say,  that 
citizens,  —  or  rather  individuals,  for  there  would  be 
no  citizens  in  the  absence  of  a  State,  —  will  volun- 
tarily unite  to  secure  general  improvements  such  as 
roads,  sanitation,  illumination  and  the  like,  and  to 
protect  themselves  against  threatened  violation  of 
their  lives  and  property.  In  this  way  mutual  action 
will  be  secured  by  clubs  or  associations  voluntarily 
formed.  All  such  regulation  the  anarchist  says  is 
legitimate  as  based  upon  purely  voluntary  action. 
But  to  this  assertion  we  must  demur.  We  may 
properly  ask,  how  about  the  minority  who  are 
coerced  by  the  action  of  such  associations  ?  Cer- 
tainly they  are  coerced,  and  to  them  it  is  none  the 
less  compulsion  because  proceeding  from  such  a  so- 
called  voluntary  source,  rather  than  from  a  more 
permanent  and  general  political  power.  In  either 
case  it  is  the  application  of  an  outside  force  bind- 
ing their  wills  or  actions  to  a  conformity  with  its 
desires.  Again  we  may  ask,  what  conditions,  and 
who,  are  to  determine  when,  and  for  what  purposes, 
the  majority  are  thus  to  unite ;  and  to  what  extent 
shall  their  coercion  extend  ?  Can  there  be  placed  any 
other  rational  limit  to  this  compulsion  than  that  dic- 
tated by  the  will  of  the  party  that  is  most  powerful, 
—  most  powerful  either  on  account  of  superiority  of 
numbers  or  wealth,  or  other  influences  ?  A  society 
may,  in  fact,  be  easily  imagined  based  upon  this  so- 
called  voluntary  or  anarchistic  principle,  in  which  the 


320  THE  NATURE   OF  THE   STATE 

actual  freedom  of  its  members  is  reduced  to  an  abso- 
lute minimum,  by  means  of  the  varieties  of  control 
exercised  over  them  by  these  smaller  groups,  clubs, 
safety  committees,  etc.  Thus  Mr.  Donisthorpe  (him- 
self an  extreme  individualist)  says,  "Whether  we 
adopt  despotism  or  democracy,  socialism  or  anarchy, 
we  are  always  brought  back  to  this  unanswerable 
question,  what  are  the  limits  of  group  actions  in  rela- 
tion to  its  units?"  ^ 

As  a  system  of  rational  politics,  then,  anarchism 
is  without  a  logical  basis.  While  it  denies  the  right 
or  utility  of  political  action  in  general,  it  opens  the 
way  to  the  introduction  of  a  compulsion  that  is  not 
to  be  distinguished  from  it  in  essence,  and  which  is, 
in  addition,  arbitrary  and  incapable  of  limitation  or 
regulation  according  to  precise  principles. 

Individualistic.  —  According  to  the  individualistic 
school,  the  importance  of  the  so-called  private  rights 
of  property,  life  and  liberty  is  greatly  emphasized, 
and  the  proper  province  of  the  State  held  to  be 
limited  solely  to  the  protection  of  them.  The  coer- 
cive power  of  the  State  according  to  this  view  is 
regarded  as  a  necessary  evil,  being  required  only 
because  of  the  weakness  and  imperfectness  of  man's 
moral  nature.  Hence,  it  is  held  that,  with  a  develop- 
ing sense  of  order  and  morality,  the  State's  impor- 
tance will  diminish,  until,  when  the  millennium  shall 
arrive,  its  absolute  vanishing-point  will  be  reached. 

1  Mackey  (Ed.),  A  Plea  for  Liberty,  Chap.  "The  Limits  of  Indi- 
vidual Liberty." 


THE   AIMS  OF   THE   STATE  321 

At  this  point  individualism  merges  into  anarchism 
pure  and  simple,  and  the  two  views  are  thus  distin- 
guishable only  by  the  fact  that,  while  the  anarchist 
would  de]3end  upon  such  occasional  coercion  as  vol- 
untary association  would  provide,  until  this  moral 
perfection  of  man  is  attained,  the  individualist  advo- 
cates the  exercise,  until  then,  of  police  powers  by  a 
regularly  constituted  State. 

Conspicuous  among  those  holding  this  view  regard- 
ing the  limited  province  of  the  State's  activity,  and 
of  the  possibility  of  its  ultimate  disappearance,  is 
Mr.  Herbert  Spencer.  Thus  in  his  Social  Statics  he 
says  :  "  Have  we  not  shown  that  government  is  essen- 
tially immoral  ?  .  .  .  Does  not  it  exist  because  crime 
exists,  and  must  government  not  cease  when  crime 
ceases,  for  very  lack  of  objects  on  which  to  perform 
its  functions?  "  Again  he  says  :  "  It  is  a  mistake  to 
consider  that  government  must  last  forever.  ...  It 
is  not  essential  but  incidental.  As  amongst  Bush- 
men we  find  a  State  antecedent  to  government,  so 
may  there  be  one  in  which  it  shall  have  become 
extinct." 

Janet  apparently  takes  the  same  view  of  the 
essential  purpose  of  the  State.  In  his  Histoire  de 
la  Science  Politique  he  says :  "  Imaginez  en  effet  une 
politique  parfaite,  un  gouvernement  parfait,  des  lois 
parfaites,  vous  supposez  par  la  meme  des  hommes 
parfaits.  Mais  alors  la  politique  ne  serait  plus  autre 
chose  que  le  gouvernement  libre  de  chaque  homme 
par  soi-mem.e :  en  d'autres  termes,  elle  cesserait 
d'etre.     Et  cependant,  c'est   la  sa  fin  et  son  ideal. 


322  THE   NATURE   OF  THE   STATE 

L'objet  du  gouvernement  est  de  preparer  insensible- 
ment  les  homines  a  cet  etat  parfait  de  societe,  ou 
les  lois  et  le  gouvernement  liii-meme  deviendraient 
inn  tiles."  ^ 

Hume  too,  in  his  essay  entitled  Of  the  Original 
Contract,  would  seem  to  have  held  this  view. 
"  Were  all  men  possessed  of  so  inflexible  a  regard 
to  justice,  that  of  themselves  they  would  totally 
abstain  from  the  properties  of  others,"  says  he, 
"  they  had  forever  remained  in  a  state  of  absolute 
liberty,  without  subjection  to  any  magistrate  or 
political  society."  The  assertion  of  M.  Jules  Simon, 
"The   State   oudit  to  render  itself   useless  and  to 

o 

prepare  for  its  own  decease,"  would  indicate  also  the 
same  view.^ 

It  is  to  be  observed,  that  in  thus  limiting  the  State 
to  the  exercise  of  police  functions,  the  position  is 
taken  that  "  what  one  sane  adult  is  legally  com- 
pelled to  render  to  others  should  be  merely  the  nega- 
tive service  of  non-interference,  except  so  far  as  he 
has  voluntarily  undertaken  to  render  positive  ser- 
vices."^ The  point  to  be  emphasized  in  this  position, 
if  strictly  adhered  to,  is  that  the  utilitarian  basis, 
as  applicable  to  each  particular  proposed  action  of 

1  Vol.  I.  p.  c. 

2  "  As  for  discussions  about  any  one  ideal  form  of  government," 
says  Professor  Freeman  {Hist.  Essays,  4th  Series,  p.  353),  "they  are 
simply  idle.  The  ideal  form  of  government  is  no  government  at  all. 
The  existence  of  government  in  any  shape  is  a  sign  of  man's  imper- 
fection." "Government,  like  dress,  is  the  badge  of  lost  innocence," 
says  Paine,  in  his  Common  Sense.  "  The  palaces  of  kings  are  built 
upon  the  ruins  of  the  bowers  of  Paradise." 

8  Sidgwick,  The  Elements  of  Politics,  p.  38. 


THE   AIMS  OF  THE   STATE  323 

the  State,  is  disallowed.  The  province  of  govern- 
ment is  to  be  summed  up  in  legal  coercion  merely ; 
that  is,  the  prevention  of  worse  coercion  by  private 
individuals.  The  claim  that  the  State  may  go  fur- 
ther than  this  and  perform  positive  duties,  and  com- 
pel performance  of  actions  on  the  part  of  individuals 
on  the  ground  that  some  apparent  beneficial  social 
result  may  be  obtained,  is  denied. 

The  view  of  Humboldt  is  possibly  the  clearest 
statement  of  this  doctrine.  "  The  aim  of  the  State 
should  be,"  says  he,  "  the  development  of  the  powers 
of  all  its  single  citizens  in  their  perfect  individuality ; 
that  it  must  therefore  pursue  no  other  object  than 
that  which  they  cannot  pursue  of  themselves,  viz., 
security."  This  he  gives  as  the  abstract  or  general 
rule  that  should  govern  the  political  power  in  the  exer- 
cise of  its  function.  As  he  subsequently  says,  this  rule 
cannot  be  universally  applied,  but  when  it  is  infringed, 
it  should  be  because  of  imperative  necessity  and  not 
in  obedience  to  the  apparent  dictates  of  utility.^ 

As  regards  this  purely  individualistic  idea,  it  may 
be  stated  in  the  first  place,  that  it  is  one  that  has 
never  yet  been  strictly  followed  by  any  party  of 
men,  and  is,  in  fact,  an  ideal  impossible  of  attain- 
ment. Spencer's  famous  law  of  justice  or  equal  free- 
dom, according  to  which  "  ever}^  man  shall  be  free  to 
do  that  which  he  will,  provided  he  does  not  infringe 
the   equal  freedom  of  any  other  man,"^  if   rigidly 

^  Ideen  zu  einem  Versuch  die  Grenzen  der  Wirkxamkeit  des  Staats  zu 
bestimmen. 

2  Social  Statics,  abridged  and  revised,  p.  55;  Justice,  p.  46. 


324  THE  NATUKE  OF  THE  STATE 

applied  can  only  mean  the  total  disruption  of  all 
social  control.  It  would  compel  either  an  almost 
total  abstinence  from  action  by  every  individual,  or 
introduce  a  veritable  war  of  all  against  all.^ 

In  the  analysis  of  governmental  functions  that 
Professor  Sidgwick  has  given  us  in  his  recent  work, 
TJie  Elements  of  Politics,  he  shows  that  individualists 
themselves  go  beyond  their  avowed  aim,  and,  instead 
of  making  personal  freedom  the  sole  purpose  of  gov- 
ernmental interference,  do,  as  a  matter  of  fact,  accept 
the  utilitarian  basis  for  the  State's  action.  Thus,  for 
a  single  example  :  "  The  individualistic  minimum  of 
governmental  interference  is  commonly  stated  to  in- 
clude protection  of  property  as  well  as  of  person ; 
and  it  is  obvious  that  an  individualist  is  bound  to 
prevent  any  interference  by  one  man  with  the  prop- 
erty of  another  —  either  by  actually  excluding  him 
from  the  use  of  what  he  owns,  or  otherwise  impair- 
ing its  utility  to  him  —  if  we  suppose  private  prop- 
erty already  instituted  :  since,  in  fact,  the  institution 
of  private  property  means  the  prohibition  of  such 
interference.  But  we  have  yet  to  determine  the 
prior  question  why  and  how  far  the  institution  of 
private  property  can  be  included  in  the  general  prin- 
ciple of  Individualism.  And  if  we  take  freedom  — 
in  the  ordinary  sense  —  as  an  ultimate  end,  without 
any  regard  to  utility,  this  inclusion  seems  to  me  very 


1  Cf.  on  this  point,  Ritchie,  Nnturnl  RigJitx,  pp.  142-7,  and 
article  by  L.  F.  Ward,  in  Annals  of  the  Am.  Acnd.  of  Pol.  and 
Sac.  Sci.,  Vol.  IV.  No.  4,  pp.  101-5,  entitled  "Political  Ethics  of 
Spencer." 


THE   AIMS   OF   THE   STATE  326 

disputable ;  it  would  seem  that  the  end  would  be 
most  completely  realized  by  preventing  A  from 
thwarting  B's  actual  use  of  material  things,  with- 
out going  so  far  as  to  support  B  in  the  exclusion  of 
other  men  from  the  enjoyment  of  things  that  he  has 
once  used."  ^  In  like  manner  it  can  be  shown  that 
in  a  governmental  regulation  of  personal  security, 
and  the  enforcement  of  contracts,  utilitarian  ele- 
ments are  necessarily  included. 

We  may  leave  then  as  impracticable,  if  not  im- 
possible, that  doctrine  of  pure  individualism  which 
justifies  State  coercion  only  to  prevent  individual  co- 
ercion ;  and  turn  to  the  consideration  of  that  modified 
individualistic  doctrine,  which,  admitting  the  utilita- 
rian principle  involved  in  the  maintenance  of  private 
rights,  yet  limits  strictly  the  application  of  this  prin- 
ciple to  these  particular  subjects,  and  thus  denies  the 
general  propriety  of  the  State's  requiring  positive 
services  from  the  mdividual,  other  than  those  freely 
contracted  for. 

If,  now,  this  individualistic  minimum  is  to  be  main- 
tained, it  can  only  be  upon  the  ground  that,  from 
the  very  nature  of  the  State,  and  from  the  neces- 
sary character  and  effect  of  its  action,  the  best  utili- 
tarian results  to  mankind  are  thereby  to  be  obtained. 
For,  upon  what  other  logical  grounds  can  it  be  held 
improper  for  society  to  avail  itself  of  an  instru- 
ment of  its  own  creation.  We  are  of  course  not 
concerned  here  with  the  alleged  support  given 
to   this  view   by  the    doctrine    of   Natural   Rights. 

^  The  Elements  of  PolUics,  p.  -15. 


326  THE   NATURE   OF  THE   STATE 

The  insufficiency  of  that  doctrine  we  have  already 
shown. 

Even  were  historical  proof  obtainable  (as  Spencer 
seems  to  think  there  is)  to  show  that  wherever,  in  the 
past,  the  State  has  departed  from  its  essential  field  of 
activity,  its  efforts  have  been,  as  a  rule,  attended  by 
mischievous  results,  this  would  not  be  a  conclusive 
demonstration  of  the  correctness  of  the  individualistic 
view.  That  a  State  has  erred  in  judgment  in  the  past 
is  not  absolute  proof  that  it  will  err  again  in  the  future. 
It  may  be  that  such  failures  have  been  due  to  imper- 
fect governmental  organizations,  to  the  demands  of 
class  interests,  or  to  the  lack  of  adequate  informa- 
tion, —  all  of  which  evils  are  now  removed  or  remov- 
able. If  the  individualistic  rule  is  to  obtain  as  a 
general  rule  of  State  action,  —  as  one  that  will  ren- 
der improper  the  application  of  utilitarian  considera- 
tion to  each  particular  instance, — it  must  be  founded 
upon  an  inherent  characteristic  of  all  State  action 
that  renders  it  unsuited  for  the  performance  of  any 
but  police  functions,  and  that  even  as  to  these,  their 
performance  is  called  for  only  on  account  of  imperfect 
social  conditions  that  may  ultimately  be  corrected. 

Analyzing  now  the  essential  jDOstulates  upon 
which  the  individualistic  doctrine  rests,  we  find 
them  to  be,  in  effect,  the  following:  — 

First,  that  self-interest  is  a  universal  principle  in 
human  nature. 

Secondly,  that  each  individual,  in  the  long  run, 
knows  his  own  interests  best,  and,  in  the  absence  of 
arbitrary  restrictions,  is  sure  to  follow  them. 


THE   AIMS   OF   THE   STATE  327 

Thirdly,  that  m  absence  of  external  restramt,  free 
competition  can  and  does  exist ;  and 

Fourthly,  that  such  free  competition  always  devel- 
ops the  highest  human  possibilities,  by  enabling  each 
individual  to  do  that  for  which  he  is  best  fitted,  by 
eliminating  unfit  elements,  and  thus  most  surely 
advancing  the  welfare  of  all. 

We  need  not  especially  consider  the  first  principle, 
viz.,  that  of  self-interest,  as  it  would  lead  us  into 
an  unnecessary  ethical  discussion  of  the  relations 
between  egoism  and  altruism  that  would  be  foreign 
to  the  purposes  of  this  work. 

As  regards  however  the  second  postulate,  that  the 
individual  will  best  know  his  own  interests,  or  that 
he  will  follow  them  when  known,  we  enter  an  em- 
phatic denial.  Nothing  is  more  obvious  than,  as  for 
example,  in  the  matters  of  compulsory  education,  sani- 
tation and  the  like,  that  it  is  the  very  persons  upon 
whom  coercion  is  needed  who  are  least  qualified  to 
judge  concerning  the  value  of  the  conduct  that  such 
compulsion  demands.  This  ignorance  is  seen  in 
the  attitude  often  displayed  by  the  working  classes 
against  the  introduction  of  machinery,  and  may  be 
pointed  out  in  numberless  other  directions. 

The  third  postulate,  as  to  the  necessary  existence 
of  free  competition  in  the  absence  of  external  re- 
straint by  the  State,  is  also  not  necessarily  true. 
Genuine  competition  is  possible  only  where  the 
contesting  parties  possess  comparative  equality  of 
strength.  Where  there  is  not  this  equality  a  contest 
means  not  competition,  with  any  of   the  resulting 


328  THE  NATURE   OF  THE   STATE 

benefits  that  the  fourth  postulate  predicates,  hut 
simply  a  destruction  of  the  weaker  party.  It  is 
thus  possible  that  in  many  instances  the  interference 
of  the  State,  by  rendering  conditions  more  equal,  may 
actually  promote  competition  rather  than  destroy  it. 
Furthermore,  as  Professor  H.  C.  Adams  has  shown 
in  his  excellent  monograph,  The  State  in  Relation 
to  Industrial  Action,  law  may  often  serve  not  so 
much  to  check  competition  as  to  raise  its  moral 
plane.  Proof  of  this  is  to  be  seen  in  the  results 
following  from  factory  legislation  and  the  regulation 
of  the  employment  of  women  and  children. 

Finally,  we  turn  to  the  fourth  and  last  postu- 
late, that  the  ultimate  effect  of  free  competition, 
where  possible,  is  beneficial.  The  consideration  of 
this  assertion  brings  us  to  the  question  of  the 
applicability  of  the  so-called  evolutionary  laws  of 
"  struggle  for  existence "  and  "  survival  of  the 
fittest,"  to  social  and  political  man. 

The  fact  that  the  operation  of  this  principle  of 
struggle  for  existence  is  the  principal  means  through 
which  nature  secures  the  development  and  evolution  of 
her  species,  leads  the  individualistic  school  of  thinkers 
to  maintain  the  necessity  for  allowing  free  scope  to 
the  operation  of  this  same  law  when  applied  to  human 
society.  So  universal  and  powerful  do  they  consider 
the  operation  of  this  force,  and  so  certainly  do  they 
regard  its  ultimate  effect  to  be  the  improvement  of 
the  human  race,  that  the  fatalistic  position  is  taken 
of  maintaining  it  to  be  useless  and  even  dangerous 
to  attempt  to  control,  assist  or  oppose  in  any  way  its 


THE  AIMS   OF  THE  STATE  329 

workings.  For  this  reason,  they  assume  the  attitude 
of  extreme  laissez  faire,  and  discourage  all  organized 
effort  on  the  part  of  society,  or  of  the  State,  to  assist 
in  the  regulation  and  improvement  of  the  industrial 
life  of  its  people.  Thus  says  Mr.  Spencer  in  his 
essay  entitled  Tlie  Man  versus  The  State :  "  Society, 
in  its  corporate  capacity,  cannot  without  immediate 
or  remote  disaster  interfere  with  the  play  of  these 
opposed  principles  under  which  a  species  has  reached 
such  fitness  for  its  mode  of  life  as  it  possesses,  and 
under  which  it  maintains  that  fitness." 

In  accordance  with  this  position  this  philosopher 
bewails  the  interference  of  the  State  in  the  regula- 
tion of  factory  labor,  employment  of  women  and  of 
children,  and  the  limitation  of  hours  of  labor  in  cer- 
tain employments.  He  considers  unwise  the  assump- 
tion by  the  State  of  the  right  to  enforce  sanitary 
regulations,  as,  for  instance,  those  of  drainage  and  of 
preventing  the  spread  of  contagious  diseases ;  and 
he  even  reprobates  the  monopolization  by  the  State 
of  the  sole  right  of  coining  money.  All  of  these 
matters  he  thinks  should  be  left  to  the  regulative 
law  of  competition. 

The  most  thorough-going  criticism  of  this  Spen- 
cerian  doctrine  is  that  of  Professor  Lester  F.  Ward, 
contained  in  his  recent  work  w^hicli  we  have  already 
had  occasion  several  times  to  cite,  The  Psychic 
Factors  of  Civilization,  and  in  an  article  contributed 
by  him  to  the  Annals  of  the  American  Academy  of 
Political  and  Social  Science.  So  satisfactorily  has  this 
writer  laid  bare  the  inaccuracies  and  insufficiencies 


330  TirE  NATURE   OF  THE   STATE 

of  this  doctrine  that  in  the  following  paragraphs  it 
is  necessary  to  do  little  more  than  reproduce  his 
arguments.^ 

It  is  to  be  observed  that  with  Spencer  and  his  fol- 
lowers the  ultimate  beneficence  of  the  natural  law 
of  competition  is  everywhere  lauded.  "Pervading 
all  natures,"  says  Spencer,  "we  may  see  at  work  a 
stern  discipline  which  is  a  little  cruel  that  it  may  be 
very  kind."^  All  activities  of  government  beyond 
mere  police  powers  tamper  with  this  beneficent  law 
and  are  against  the  order  of  nature. 

Now  the  first  point  that  impresses  one  in  the  oper- 
ation of  this  law  of  nature,  is  its  extravagance  as 
manifested  in  all  the  lower  domains  of  life.  Thou- 
sands and  even  millions  of  progeny  are  produced  in 
order  that,  in  this  competition,  the  survival  of  a 
single  individual  may  be  secured.  "  It  thus  ap- 
pears," says  Professor  Ward,  "  that  in  biology,  while 
nothing  takes  place  which  does  not  secure  some 
advantage,  however  slight,  the  amount  of  energy 
expended  in  gaining  this  advantage  bears  no  fixed 
proportion  to  the  value  of  the  result.  Nature  acts 
on  the  assumption  that  her  resources  are  inexhaust- 
ible, and  while  she  never  buys  a  wholly  useless  arti- 
cle she  usually  pays  an  extravagant  price  for  it. 
The  expressions  '  natural  selection '  and  '  survival  of 
the  fittest'  both  contain  the  significant  implication 
that  the  bulk  of  things  are  not  selected,  and  that 

1  Reference  should  also  be  made  to  the  able  essay  by  Professor 
Ritchie,  entitled  Darwinism  and  Politics. 

2  The  Man  versus  The  State. 


THE   AIMS  OF  THE   STATE  331 

only  the  select  few  who  prove  fit  survive,  while 
all  else  perish.  The  first  member  of  the  biologic 
law  of  economy  may  be  characterized  by  the  term 
^practical.'  The  second  may  in  like  manner  be 
characterized  by  the  term  '^prodigal.'  Nature  is 
therefore  at  once  the  most  practical  and  the  most 
prodigal  of  all  economists ;  practical  in  that  she 
never  makes  anything  which  has  not  the  elements 
of  utility,  prodigal  in  that  she  spares  no  expense  in 
accomplishing  even  the  smallest  results."  ^ 

The  operation  of  such  a  principle  as  this  in  human 
society  is  manifestly  abhorrent,  and  the  fact  is  that 
it  has  never  been  allowed  to  operate  undisturbed. 
"  Competition  .  .  .  not  only  involves  the  enormous 
waste  which  has  been  described,  but  it  prevents  the 
maximum  development,  since  the  best  that  can  be 
attained  under  its  influence  is  by  far  inferior  to  that 
which  is  easily  attained  by  the  artificial,  i.e.  the 
rational  and  intelligent,  removal  of  that  influence." 

"  Hard  as  it  seems  for  modern  philosophers  to 
understand  this,  it  was  one  of  the  first  truths  that 
dawned  upon  the  human  intellect.  Consciously  or 
unconsciously  it  was  felt  from  the  very  outset  that 
the  mission  of  mind  was  to  grapple  Avith  the  law  of 
competition  and  as  far  as  possible  to  resist  and 
defeat  it.  This  iron  law  of  nature,  as  it  may  be 
appropriately  called  (Ricardo's  '  iron  law  of  wages ' 
is  only  one  manifestation  ■  of  it),  was  everj-where 
found  to  lie  athwart  the  path  of  human  progress, 
and    the   whole   upward   struggle  of   rational  man, 

^  The  Psychic  Factors  of  Civilization,  p.  251. 


332  THE  NATURE   OF  THE   STATE 

whether  physical,  social  or  moral,  has  been  with  this 
tyranny  of  nature — the  law  of  competition.  And 
in  so  far  as  he  has  progressed  at  all  beyond  the 
purely  animal  stage  he  has  done  so  through  triumph- 
ing little  by  little  over  this  law  and  gaining  some- 
what the  mastery  in  this  struggle.  In  the  physical 
world  he  has  accomplished  this  so  far  as  he  has 
been  able  through  invention,  from  which  have  re- 
sulted the  arts  and  material  civilization.  Every 
implement  or  utensil,  every  mechanical  device,  every 
object  of  design,  skill,  and  labor,  every  artificial 
thing  that  serves  a  human  purpose,  is  a  triumph  of 
mind  over  the  physical  forces  of  nature  in  ceaseless 
and  aimless  competition.  The  cultivation  and  im- 
provement of  economic  plants  and  the  domestication 
of  useful  animals  involve  the  direct  control  of  bio- 
logic forces  and  the  exemption  of  these  forms  of  life 
from  the  operation  of  the  great  organic  law  which 
dwarfs  their  native  powers  of  development.  All 
human  institutions, — religion,  government,  law,  mar- 
riage, custom,  —  together  with  innumerable  other 
modes  of  regulating  social,  industrial,  and  commer- 
cial life,  are,  broadly  viewed,  only  so  many  ways 
of  meeting  and  checkmating  the  principle  of  compe- 
tition as  it  manifests  itself  in  society.  And  finally, 
the  ethical  code  and  the  moral  law  of  enlightened 
man  are  nothing  else  than  the  means  adopted  by 
reason,  intelligence,  and  refined  sensibility  for  sup- 
pressing and  crushing  out  the  animal  nature  of 
man  —  for  chaining  the  competitive  egoism  that  all 
men  have   inherited  from  their  animal   ancestors." 


TKE   AIMS   OF   THE   STATE  333 

"The  simple  truth  is  that  everything  thtat  is  done 
at  the  behest  of  the  intellectual  faculty  is  per  se  and 
of  necessity  purely  artificial  in  the  only  sense  that 
the  word  has.  The  whole  difference  between  civil- 
ization and  other  forms  of  natural  progress  is  that 
it  is  a  product  of  art."  ^ 

To  the  same  effect  is  the  pertinent  query  of  Pro- 
fessor Ritchie.  "  Where  are  we  to  find  a  line 
between  '  natural '  and  '  artificial,'  "  he  asks,  "  if  all 
the  phenomena  of  society  are,  as  the  evolutionist  is 
bound  to  hold,  subject  to  the  same  laws  of  nature  ? 
If  we  are  content  to  remove  only  some  artificial 
restrictions,  on  what  principle  can  we  justify  our- 
selves ?  If  we  were  to  remove  every  artificial  re- 
striction that  hampers  the  struggle  for  existence,  are 
we  not  going  back  to  Rousseau's  '  State  of  Nature,' 
the  primitive  uncivilized  condition  of  mankind  ?  "  ^ 

Not  only  is  the  brute  struggle  for  existence  too 
wasteful,  but  it  does  not  necessarily  lead  to  the 
survival  of  the  fittest  in  the  highest  sense  of  that 
word.     It  is  not  always  remembered  that  evolution 

^  The  Psychic  Factors  of  Civilization,  p.  2G1.  "Men  in  society  are 
undoubtedly  subject  to  the  cosmic  process,"  says  Huxley,  in  his  re- 
markable Romanes  lecture  entitled  Evolution  and  Ethics.  "  As  among 
other  animals,  multiplication  goes  on  without  cessation,  and  involves 
severe  competition  for  the  means  of  support.  .  .  .  But  the  influence 
of  the  cosmic  process  on  the  evolution  of  society  is  the  greater  the 
more  rudimentary  its  civilization.  Social  process  means  a  checking 
of  the  cosmic  process  at  every  step,  and  the  substitution  for  it  of 
another,  which  may  be  called  the  ethical  process ;  the  end  of  which  is 
not  the  survival  of  those  who  may  happen  to  be  the  fittest  in  respect  of 
the  whole  of  the  conditions  which  exist,  but  of  those  who  are  ethically 
the  best." 

^  Darwinism  and  Politics. 


334  THE   NATURE   OF  THE   STATE 

is  not  necessarily  progress.  As  Huxley  somewhere 
says,  "  the  creature  that  survives  a  free  fight  only 
demonstrates  his  superior  fitness  for  coping  with 
free  fighters  —  and  not  any  other  kind  of  superi- 
ority." And  as  he  further  says  in  his  recent 
Romanes  lecture  upon  Evolution  and  Ethics :  "  In 
cosmic  nature  what  is  fittest  depends  upon  the  con- 
ditions. ...  If  our  hemisphere  were  to  cool  again, 
the  survival  of  the  fittest  might  bring  about  in  the 
vegetable  kingdom  a  population  of  more  and  more 
stunted  and  humbler  and  humbler  organisms,  until 
the  fittest  that  survived  might  be  nothing  but 
lichens,  diatoms,  and  such  microscopic  organisms  as 
those  which  give  red  snow  its  colour ;  while  if  it 
became  hotter  the  splendid  valley  of  the  Thames 
and  Isis  might  be  unhabitable  by  any  animated 
beings  save  those  that  flourish  in  a  tropical  jungle. 
They,  as  the  fittest,  the  best  adapted  to  the 
changed  conditions,  would  survive."  ^ 

Furthermore,  as  Ritchie  points  out,  the  struggle 
goes  on  not  merely  between  individual  and  indi- 
vidual, but  between  race  and  race,  and  while  the 
race  fittest  to  survive  may  survive,  "  it  does  not 
follow  that  the  individuals  thereby  preserved  will 
be  the  fittest,  either  in  the  sense  of  being  those 
who  in  a  struggle  between  individual  and  indi- 
vidual would  have  survived,  or  in  the  sense  of 
being  those  whom  we  should  regard  as  the  finest 
specimens  of  their  kind." 

In  fine,  the  entire  distinction  that  is  to  be  made 

1  Collected  Essays,  Vol.  IX.  p.  SO. 


THE   AIMS  OF  THE   STATE  335 

between  mankind  and  brute  creation  is  contained 
in  tlie  fact  that  while  the  animal  is  transformed 
by  its  environment,  man  transforms  the  environ- 
ment, —  that  the  slow  and  expensive  method  of 
structural  development  by  means  of  the  biologic 
law,  is  supplanted  by  the  intellectual  capacity  of 
man  to  transform  and  adapt  his  environment  to 
his  needs,  and  thus  to  secure  an  improvement  higher 
than  the  mere  biological  law  could  obtain,  and  with- 
out its  painful  and  prodigal  methods. 

The  fact  is,  that  when  we  reach  man,  the  competi- 
tive biologic  law  holds  good  and  is  beneficent  rather 
in  its  psychic  than  in  its  physiological  aspects,  while 
with  Spencer  and  his  followers,  the  physiological 
features  are  emphasized  and  the  psychic  elements 
almost  io;nored. 

The  conclusion  that  we  draw  from  the  foregoing 
reasoning  is  the  prima  fade  propriety  of  man  using 
all  his  efforts,  and  availing  himself  of  all  possible 
agencies  for  restricting  the  effects  of  the  competi- 
tive law  when  its  operation  is  seen  to  be  harmful. 
In  accordance,  then,  with  the  preceding  we  may 
formulate  the  following  general  law  which  should, 
and  of  necessity  will,  govern  societies  of  men  so 
long  as  reason  and  intelligence  hold  their  sway. 

"First,  where  the  Darwinian  law  in  its  applica- 
tion to  social  man  is  too  cruel  or  wasteful,  or  works 
in  any  way  to  destroy  those  who  from  the  broad 
and  highest  standpoint  of  race  improvement  are  best 
fitted  to  survive,  to  that  extent  the  law  is  to  be 
checked  or  regulated  if   possible   by  the   organized 


336  THE   NATURE    OF   THE   STATE 

effort  of  society.  Secondly,  where  the  law  does  not 
so  operate  as  to  eliminate  those  essentially  unfit  to 
survive,  the  impeding  cause  is  to  be  removed  and 
the  operation  of  the  law  rendered  possible."^ 

A  consideration  of  the  various  economic  and  social 
problems  that  surround  us  will  show  that  in  the 
solution  of  almost  all  of  them  is  involved  the 
direct  application  of  this  law  which  we  have  laid 
down.  All  that  class  of  questions  relating  to  the 
State  regulation  of  labor,  factory  acts,  child  and 
women  work,  Sunday  laws,  prohibition  of  sweating, 
anti-trust  legislation,  control  of  natural  monopolies, 
—  all  have  for  their  purpose  the  mitigation  of  the 
undue  severity  of  industrial  competition,  or  the 
struggle  for  industrial  survival.  Both  protection- 
ists and  free-traders  appeal  to  this  law  to  supjoort 
them  in  their  contentions.  The  protectionists  ask 
that  the  State  give  assistance  to  industries,  indus- 
trially "  fit "  for  survival,  until  they  are  able  to 
support  themselves  upon  their  own  merits.  The 
strongest  argument  made  by  their  opponents,  the 
free-traders,  is  that  to  do  so  is  to  give  an  arti- 
ficial assistance  to  industries  that  are  "unfit"  for 
survival,  and  that  it  is  thus  at  the  expense  of 
society  that  they  are  enabled   to    maintain   an   ex- 

*  This  is,  in  fact,  the  wider  application  of  the  law  formulated 
by  Dr.  A.  G.  Warner,  for  the  guidance  of  charity  relief,  which  is  to 
the  following  effect :  "The  purpose  of  philanthropy  should  be  (1)  to 
preserve  those  who  are  fit  from  the  standpoint  of  race  improve- 
ment from  being  crushed  by  unfortunate  local  and  temporary  con- 
ditions ;  and  (2)  to  enable  those  who  are  unfit  from  the  standpoint 
of  race  improvement  to  become  extinct  with  the  least  possible 
8  offering." 


THE   AIMS   OF  THE  STATE  337 

istence,  when  natural  selection,  if  left  to  its  normal 
operation,  would  decree  their  extinction. 

The  great  evils  connected  with  our  imperfect  penal 
methods,  and  with  improper  and  indiscriminate  char- 
ity relief,  are  simply  the  results  of  rendering  possible 
the  continued  existence,  and  even  encouraging  the 
increase,  of  beings  intellectually,  morally  and  physi- 
cally unfit  for  survival.  The  enormous  combinations 
of  capital  in  the  form  of  trusts,  that  characterize 
recent  years,  are  but  the  result  of  the  efforts  of  pro- 
ducers to  escape  from  that  fierce  competitive  struggle 
wdiich  they  see  to  be  detrimental  to  their  interests. 
So  new,  however,  is  this  phase  of  industrial  develop- 
ment that  as  yet  it  is  a  debatable  question  to  what 
extent  these  capitalistic  aggregates  are  properly 
fitted  to  survive  from  the  standpoint  of  general 
interests  of  society,  even  should  they  prove  them- 
selves successful  when  considered  from  the  point  of 
view  of  their  individual  owners.  If  not  socially  fit 
to  survive,  the  organic  law  of  society  would  demand 
their  regulation  or  prohibition  by  the  State. 

The  Non-Essential  Functions  of  the  State.  —  The 
refutation  of  the  individualistic  doctrines,  whether 
in  their  pure  or  utilitarian  form,  leads  necessarily  to 
the  assumption  that  the  State  may,  in  certain  cases, 
properly  exercise  powers  other  than  those  that  are 
necessary  for  its  mere  existence  and  the  maintenance 
of  order.  These  other  functions  we  term  "  non- 
essential" or  "common  welfare"  functions.  They 
include  in  general  the  economic,  industrial  and  moral 


338  THE  NATURE   OF  THE   STATE 

interests  of  tlie  people.  They  are  the  activities  as- 
sumed by  the  State,  not  because  their  exercise  is  a 
sine  qua  non  of  the  State's  existence,  but  because 
their  public  administration  is  supposed  to  be  advan- 
tageous to  the  people.  They  are  such  that  if  left  in 
private  hands  would  either  not  be  performed  at  all, 
or  poorly  performed. 

The  determination  of  just  what  powers  shall  be 
assumed  by  the  State,  is  solely  one  of  expediency, 
and  as  such  lies  within  the  field  of  Politics,  or  the 
Art  of  Government,  and  not  within  the  domain  of 
political  theory.  For  this  reason  we  are  not  here 
called  upon  to  discuss  the  utilitarian  arguments  jwo 
and  contra,  upon  which  the  public  control  of  this 
or  that  interest  is  to  be  defended  or  opposed.  In 
each  instance  the  particular  circumstances  of  the 
case  must  determine  whether  or  not  the  advan- 
tages to  be  derived  from  the  public  control  in  a 
particular  case  are  more  than  offset  by  the  weak- 
ening of  the  self-reliance  of  the  people,  by  the 
encroaching  upon  their  personal  freedom,  by  the 
opening  of  the  way  to  corrupt  influences  in  govern- 
ment, or  by  the  creating  of  precedents  for  the 
assumption  of  activities  by  the  State  that  will  be 
detrimental  to  the  general  interests.  This  is  practi- 
cally the  rule  followed  by  all  modern  civilized  States. 

In  accepting  this  broad  utilitarian  basis  for  the 
State's  action,  as  including  every  activity  that  may 
in  any  way  promote  the  general  welfare,  the  greatest 
latitude  of  individual  opinion  is  permitted  as  to  just 
what  public  functions  will  subserve   this  end.     Ac- 


THE   AIMS   OF   THE   STATE  339 

cording  to  the  weight  given  to  the  various  arguments 
for  and  against  State  action  one  may  differ  little 
in  practice  from  the  limited  policy  dictated  by  the 
individualist,  or  from  the  extreme  doctrine  of  the 
socialist  or  even  the  communist.  The  only  point 
here  insisted  upon  is  that  there  is  no  a  priori  or 
fixed  limit  which  can  be  placed  to  governmental 
activity,  but  that  the  assumption  of  each  function 
must  rest  upon  its  own  utilitarian  basis. 

The  purposes  of  this  treatise  do  not  require  us, 
therefore,  to  consider  more  particularly  the  doctrines 
of  the  socialists.  That  alone  which  distinguishes 
their  views  from  the  other  and  less  radical  tenets 
of  the  "  General  Welfare  "  school  is  the  greater  con- 
fidence felt  in  the  efficiency  and  advisability  of  State 
action,  and  hence  a  greater  readiness  to  use  it.  It  is 
of  course  obvious  to  them  that  an  industrial  rea:ime, 
in  which  all  instruments  of  production  are  owned 
in  common,  includes  inherent  difficulties  of  organi- 
zation of  industry,  of  the  establishment  of  a  satis- 
factory and  just  method  of  individual  remuneration, 
and,  above  all,  of  a  necessary  settlement  of  the 
Malthusian  problem.  But  these  difficulties,  which 
to  the  most  of  us  seem  practically  insurmountable, 
are  not  such  to  them.  As  regards,  however,  the 
principle  that  there  is  no  valid  objection  to  the  use 
of  the  political  power  for  the  performance  of  any 
function  that  will  beneficially  affect  the  social  wel- 
fare, we  are  m  agreement  with  them. 

By  a  necessary  course  of  events  the  trend  has 
been  towards  the  assumption  by  the  State  of  new 


340  THE   NATURE  OF   THE   STATE 

functions  in  the  control  and  regulation  of  industrial 
life ;  and  the  same  causes  that  have  operated  in  the 
past  will  continue  to  have  their  effect  in  the  future. 
As  industrial  society  develops,  and  increases  in 
coherence  and  complexity,  the  social  interests  — 
those  affecting  the  people  in  general  —  will  become 
more  numerous  and  important,  and  enlightened  util- 
itarianism will  demand  the  subordination  of  individ- 
ual interests  to  the  general  weal  of  the  community. 
Added  to  this,  will  be  the  necessity  for  additional 
power  in  the  State  for  the  proper  maintenance  of 
itself  in  its  position,  rendered  more  important  and 
difficult  by  the  increased  complexity  of  the  social 
organism.  As  also  tending  towards  an  extension 
of  the  State's  industrial  functions,  is  what  may  be 
termed  the  growing  self-consciousness  on  the  part 
of  society  of  its  own  power  potentially  possessed, 
and  hence  of  the  possible  extent  to  which  its  powers 
may  be  used  for  the  promotion  of  the  welfare  of  its 
individual  members.  Furthermore,  while  in  the 
absence  of  popular  government  the  administration  of 
public  affairs  was  largely  dominated  by  individual  and 
class  selfishness,  it  was  but  natural  that  the  presump- 
tion should  be  against  State  action  whenever  indi- 
vidual action  was  possible.  As  this  disturbing  factor 
is  removed  by  the  widening  of  political  rights  and  the 
perfection  of  political  machinery,  this  prejudice  will 
be  removed. 

In  conclusion,  then,  of  this  subject,  instead  of  it 
being  the  duty  of  a  State  to  prepare  for  its  own 
decease ;    and   instead  of   it  being   the  tendency  of 


THE  AIMS   OF  THE   STATE  341 

developing  civilization  to  render  the  existence  of  a 
political  power  less  and  less  necessary,  the  reverse  is 
the  case.  In  a  multitude  of  directions  the  force  of 
conditions  will  cause  the  State  to  become  increasingly 
important  not  only  as  a  conservative  but  as  a  con- 
structive agent.  When  the  moral  millennium  shall 
arrive,  if  ever,  it  may  be  conceived  that  the  necessity 
for  the  actual  exercise  of  the  punitive  powers  of  the 
State  will  have  diminished  to  a  minimum,  and  that 
the  increase  of  morality  will  have  largely  removed 
the  necessity  for  the  physical  coercion  that  the  State 
now  supplies.  But  let  it  not  be  thought  that  the 
decrease  in  the  exercise  of  force  indicates  in  any 
wise  the  lessening  of  that  force.  The  reverse  is 
more  likely  to  be  the  case.  No  one  has  made  this 
point  clearer  than  Stephen  in  his  criticism  upon  the 
individualistic  doctrines  contained  in  Mill's  essay  On 
Liberty.  As  he  expresses  it  with  metaphorical  vivid- 
ness, in  comparing  the  fourteenth  century  anarchy  in 
Scotland  w4th  its  nineteenth  century  order :  "  The 
first  impression  on  comparing  this  spirited  picture 
with  the  Scotland  which  we  all  know  —  the  Scotland 
of  quiet  industry,  farming,  commerce,  and  amuse- 
ment, —  is  that  the  fourteenth  century  was  entirely 
subject  to  the  law  of  force,  and  that  Scotland  in  the 
nineteenth  century  has  ceased  to  be  the  theatre  of 
force  at  all.  Look  a  little  deeper  and  this  impression 
is  as  false,  not  to  say  as  childish,  as  the  supposition 
that  a  clumsy  rowboat,  manned  by  a  quarrelsome 
crew,  who  can  neither  keep  time  with  their  oars,  nor 
resist  the  temptation  to  fight  among  themselves,  dis- 


342  THE  NATURE   OF   THE   STATE 

plays  force,  and  that  an  ocean  steamer  which  will 
carry  a  townful  of  people  to  the  end  of  the  earth  at 
the  rate  of  three  hundred  miles  a  day,  so  smoothly 
that  during  the  greater  part  of  the  time  they  are 
unconscious  of  any  motion  or  effort  whatever,  dis- 
plays none.  The  force  which  goes  to  govern  the 
Scotland  of  these  days  is  to  the  force  employed  for 
the  same  purpose  in  the  fourteenth  century  what  the 
force  of  a  line-of-battle  ship  is  to  the  force  of  an 
individual  prize-fighter.  The  reason  why  it  works 
so  quietly  is  that  no  one  doubts  either  its  existence, 
or  its  direction,  or  its  crushing  superiority  to  any 
individual  resistance  which  could  be  offered  to  it. 
.  .  .  Force  not  only  reigns,  but  in  most  matters  it 
reigns  without  dispute,  but  it  does  not  follow  that  it 
has  ceased  to  exist."  ^ 

It  is  not  necessary  to  recite  here  the  numerous 
and  important  instances  during  comparatively  recent 
years  in  which  the  State  has  widened  her  boundaries 
under  the  impelling  influence  of  the  causes  which  we 
have  enumerated.  If  one  were  asked  to  characterize 
in  a  single  sentence  the  development  of  government 
during  the  present  century,  it  could  not  be  better 
done  than  by  describing  such  development  as  one 
wherein  the  purely  political  duties  of  the  State  have 
become  progressively  less  important  as  compared 
with  its  other  functions. 

In  the  United  States,  the  extent  to  which  matters  of 
public  interest  are  economic  in  character  is  especially 
apparent.      With    arduous    labor,    our    enterprising 

^  Liherly,  Equality,  Fraternity,  cd.  1873,  p.  227. 


THE   AIMS   OF  THE   STATE  343 

news  journals  are  able  to  arouse  occasional  excite- 
ment on  the  part  of  the  people  in  regard  to  items  of 
our  foreign  relations,  but  as  a  matter  of  fact,  pub- 
lic matters  of  purely  j)olitical  import  seldom  arise. 
Matters  connected  with  the  maintenance  of  domestic 
tranquillity,  and  defence  from  foreign  aggression  or 
wrong  enter  but  slightly  into  our  general  thought. 
Our  legislatures  are  mainly  concerned  with  economic 
matters,  such  as  the  levying  of  proper  import  duties, 
with  the  control  of  trusts,  with  problems  connected 
with  railroads,  with  interstate  commerce,  with  the 
assessment  of  taxes,  with  the  provision  of  proper  cir- 
culating currency,  and  the  maintenance  of  sufficient 
banking  facilities. 

The  extent  to  which  this  movement  has  already 
gone  is  evidenced  by  a  comparison  of  the  history  of 
the  last  century  with  that  of  the  latter  half  of  the 
present.  Then,  history  was  little  but  the  record  of 
purely  political  events  :  of  wars,  of  treaties  of  offence 
and  defence,  of  the  settlement  of  dynastic  or  territo- 
rial disputes,  of  struggles  of  factions  for  the  possession 
of  political  power,  and  of  the  maintenance  of  public 
order.  Now,  the  pages  of  our  history,  when  they 
shall  be  written,  will  be  largely  filled  with  the  record 
of  industrial  growth,  the  negotiations  of  commercial 
treaties,  and  of  the  development  of  this  or  that 
phase  of  economic  life. 

The   Analysis   of   Governmental    Functions.  —  The 

analysis  of  governmental  functions,  as  regards  their 
aims,  discovers  them  to  be  of  a  threefold  order. 


344  THE  NATUEE   OF  THE   STATE 

First,  tliose  concerned  with  tlie  Poiver  of  the  State. 
Under  this  head  are  included,  in  very  large  measure, 
the  essential  functions,  namely,  those  that  concern 
the  maintenance  of  order  and  the  preservation  of  the 
State's  political  autonomy  in  the  family  of  nations. 
In  earlier  times  this  was  almost  the  sole  conscious  aim 
of  the  State.  In  those  times  when  not  only  were  its 
own  citizens  unaccustomed  to  order  and  obedience  to 
law,  but  when  between  the  States  themselves  there 
existed  a  pure  struggle  for  existence  unmitigated  by 
principles  of  international  morality,  such  was  neces- 
sarily the  case.  It  was  therefore  quite  essential  that 
the  functions  of  the  State  for  the  maintenance  of  itself 
as  a  military  power  should  dwarf,  by  their  importance, 
the  value  of  political  and  civic  rights,  and  that  there- 
fore these  latter  should  have  been  deemed  of  impor- 
tance only  in  so  far  as  they  served  to  strengthen  the 
power  of  the  State.  Thus  among  the  Greeks,  even 
with  their  high  degree  of  intellectual  development 
and  civilization  generally,  no  higher  conception  of 
the  State  was  reached  than  that  according  to  which 
it  should  be  the  all  in  all. 

At  the  present  day,  the  relative  importance  of  this 
aim  in  the  State's  life  varies  according  to  conditions 
and  circumstances.  In  Europe  it  still  plays  a  very 
prominent  part,  as  seen  in  the  energy  expended  in  the 
maintenance  of  navies  and  enormous  standing  armies. 
Geographical  situation  and  a  law-abiding  spirit  of  its 
citizens  make  it  possible  for  the  United  States  gov- 
ernment to  subordinate  this  aim  to  other  and  higher 
purposes.      Nevertheless,  while  the  enormous  power 


THE  AIMS   OF  THE   STATE  345 

of  our  State  is  thus  for  the  most  part  dormant,  and 
is  fully  manifested  only  in  times  of  imminent  danger, 
it  is  none  the  less  its  most  essential  attribute. 

The  second  aim  of  the  State  is,  or  should  be,  that  '' 
of  creating  and  maintaining  the  widest  possible  de- 
gree of  Liberty.  As  already  explained,  this  includes 
not  only  the  perfection  of  its  governmental  machin- 
ery, whereby  political  liberty  in  the  largest  possible 
degree  shall  be  secured,  but  also  the  guaranteeing  to 
the  individual  of  as  wide  a  field  as  possible  in  which 
he  shall  have  a  freedom  of  action,  protected  at  once 
from  arbitrary  governmental  interference  and  pri- 
vate molestation.  At  the  same  time,  as  a  corollary 
from  this,  the  action  of  the  State  should  be  so 
directed  as  to  render  its  citizens  progressively  more 
capable  of  exercising  this  freedom.  Under  this  head 
are  included,  therefore,  all  possible  efforts  to  improve 
the  State's  method  of  organization  and  administra- 
tion, to  remove  selfish  and  class  interests  from  the 
administration  of  public  affairs,  and  thus  to  render 
possible  not  only  the  formulation  of  an  intelligent 
public  opinion,  but  a  realization  of  those  aims  that 
this  opinion  discloses  when  so  formulated. 

Thirdly,  and  finally,  there  are  those  functions  of    '^ 
the    State,  that,   apart  from    any   considerations  of 
power  or  maintenance  of  individual  liberty,  tend  by 
their  exercise  to  promote  the  General  Welfare,  either 
economically,  intellectually  or  morally. 

Now  we  may  ask  ourselves,  whether  or  not  the 
facts  and  the  reasoning  which  have  preceded,  point 


346  THE   NATUEE   OF   THE   STATE 

necessarily  to  ultimate  socialism  ?  To  this  a  cate- 
gorical answer  cannot  be  given.  They  do  point,  un- 
doubtedly, to  an  inevitable  extension  of  the  State's 
activities  far  beyond  those  at  present  exercised.  But 
in  considering  the  bearing  of  an  increase  in  State 
activity  upon  this  question,  it  is  to  be  noticed  that 
not  every  assumption  by  the  State  of  a  new  function 
is  a  step  towards  socialism. 

This  is  a  very  important  point.  We  have  already 
made  the  distinction  between  essential  and  non- 
essential duties  of  the  State.  The  assumption  by 
the  State  of  a  power  in  this  latter  field  is  ordinarily 
termed  socialistic,  but  not  properly  so.  Further  con- 
sideration shows  that  this  analysis  of  governmental 
functions  may  be  carried  one  step  farther.  The  non- 
essential optional  duties  may  themselves  be  grouped 
under  two  distinct  heads,  which  may  be  termed 
"socialistic"  and  "non-socialistic"  respectively.  The 
socialistic  duties  properly  comprehend  only  activities 
which  could  be  exercised  by  the  people  if  left  to 
their  private  initiative.  Therefore,  their  assumption 
by  the  State,  is,  to  that  extent,  a  curtailment  of  the 
industrial  freedom  of  the  people.  Examples  of  social- 
istic duties  are  the  ownership  and  operation  by  the 
State  of  railroads,  of  canals  or  of  telegraph  lines ; 
the  ownership  by  the  city  of  gas,  water  and  electric 
light  works,  and  the  provision  of  model  tenement 
houses  for  the  poor  by  the  public  authorities.  These, 
it  will  be  seen,  admit  of  private  management,  and, 
in  fact,  are,  in  this  country,  very  generally  attended 
to  by  private  enterprise. 


THE   AIMS   OF   THE    STATE  347 

Under  the  non-socialistic  duties  of  the  govern- 
ment are  included  those  which  if  not  assumed  by 
the  State  would  not  be  exercised  at  all.  They 
are  duties  not  essential  to  the  State's  existence, 
and  yet,  from  their  very  nature,  not  likely  or  even 
possible  of  performance  by  private  parties.  Such 
duties  as  these  are  therefore  not  socialistic,  because 
their  public  assumption  does  not  limit  the  field  of 
private  enterprise,  nor  in  any  way  interfere  with 
private  management  of  any  sort  of  industry.  As  a 
rule,  they  are  powers  educational  in  character  rather 
than  coercive,  directive  rather  than  controlling. 
Under  this  head  come  all  those  administrative  duties 
that  are  of  an  investigating,  statistical  character, 
and  consist  not  in  the  interference  wdth  industry, 
but  in  the  study  of  conditions  and  the  diffusion  of 
the  information  thus  obtained.  Work  of  this  kind 
is  that  performed  by  the  United  States  Depart- 
ments of  Labor  and  of  Agriculture,  by  the  Bureau 
of  Education,  the  Fish  Commission,  the  Coast  and 
Geodetic  Survey,  by  the  Decennial  Censuses,  etc. 
Public  libraries  and  reading-rooms,  boards  of  health, 
the  provision  of  public  parks,  and  certain  branches 
of  education  also  come  under  this  head. 

Likewise  of  this  character  is  that  large  class  of 
governmental  duties,  that  we  have  before  mentioned, 
the  exercise  of  which  results  in  the  raising  of  the 
plane  of  competition,  ratber  than  destroying  it. 
Thus,  when  we  consider  closely,  we  see  to  what  a 
very  great  degree  the  increase  of  governmental  activ- 
ity during  the  present  century  has  been  in  this  non- 


348  THE  NATURE   OE  THE   STATE 

socialistic  field.  Furthermore  we  discover  that  in- 
dications seem  to  point  to  this  same  field  as  the  one 
to  which  the  continued  extension  of  the  sphere  of 
the  State  will  probably  be  largely  confined.  The 
effect  of  the  exercise  of  these  duties  is  not  to  check  or 
even  to  regulate  competition.  Their  purpose  is,  not 
to  interfere  with  the  struggle  for  existence  and  the 
survival  of  the  fittest,  but  to  transform  the  envi- 
ronment, and,  by  diffusing  sounder  information  con- 
cerning the  character  of  the  conditions  and  the 
nature  of  the  forces  by  which  man  is  surrounded, 
to  render  it  possible  for  him  either  to  harmonize 
his  efforts  with  them,  or  to  direct  his  strength  and 
intellect  to  a  modification  of  them.  In  fine,  to 
increase  his  opportunities. 

In  the  field  of  socialistic  duties,  the  greatest  exten- 
sion of  the  State's  powers  will  probably  be  seen  in 
the  ultimate  ownership  and  operation  by  the  State 
or  municipalities  of  all  those  industries  termed 
"  natural  monopolies  "  —  the  railroads,  gas,  water  and 
electric  light  plants,  street  transit  facilities,  etc. 
Economists  of  the  present  school  have  generally 
advocated  the  public  ownership  of  these  "natural 
monopolies,"  and  have  laid  stress  upon  the  fact  that, 
as  they  claim,  socialistic  precedents  are  not  thereby 
established,  basing  this  view  upon  the  statement  that 
it  is  only  in  this  class  of  industries,  which  are  not 
amenable  to  the  healthy  influence  of  competition, 
that  there  will  ever  arise  the  necessity  for  State 
manafrement.  This  allegation  served  for  a  time  as 
a   fair   argument,   but    the    recent    development   of 


THE   AIMS   OF   THE   STATE  349 

gigantic  trusts,  which  have  largely  removed  from 
competitive  influences  the  production  of  a  very 
considerable  number  of  commodities  whose  produc- 
tion is  not  "  naturally "  monopolistic,  has  greatly 
weakened  this  economic  distinction.  As  has  been 
before  said,  this  phase  of  industrial  development  is 
as  yet  so  new,  that  it  is  not  yet  determined  whether 
their  influence  will  be  ultimately  for  the  public  good 
or  not.  Should  these  capitalistic  aggregates  prosper 
and  prove  lucrative  to  their  individual  owners,  but, 
from  the  extent  of  their  power  of  controlling  trade, 
tend  to  exert  an  influence  detrimental  to  society  at 
large,  state  intervention  would  become  a  necessity. 
Should  simple  legislative  control  be  found  insufficient 
for  their  regulation,  the  assumption  of  the  produc- 
tion of  these  commodities  by  the  State  itself  would 
seem  to  be  necessary,  and  this  would  be  a  very 
long  step  towards  socialism. 

It  is  to  be  recognized,  however,  that  together  with 
these  forces  that  tend  to  encourage  and  increase  the 
activities  of  the  State  are  others  that  will  render  less 
necessary  a  resort  to  this  power.  With  increasing 
facilities  for  transportation  and  cheaper  rates,  and 
with  the  possible  levelling  of  the  artificial  barriers 
to  international  trade  now  raised  by  excessive  im- 
port duties,  the  maintenance  of  combinations  of 
capital  controlling  the  production,  and,  consequently, 
the  price  of  commodities,  will  become  increasingly 
difficult.  More  important  than  this,  however,  is  the 
fact  that  the  development  of  humanity  is  not  along 
the  social  side  alone.     Together  with  the  forces  that 


350  THE  NATURE   OF   THE   STATE 

tend  to  increase  the  social  side  of  man,  are  others 
tending  to  the  development  of  his  individuality. 

With  increasing  civilization  will  come  higher 
morality,  broadened  altruism,  and  widened  intellec- 
tual horizon.  These  are  the  forces  which  may  be 
depended  upon  for  the  correction  of  imperfect  con- 
ditions as  they  arise,  without  the  intervention  of  the 
State.  The  more  enlightened  a  people  become, 
morally  and  intellectually,  the  more  inclined  and 
more  able  will  they  be  to  depend  upon  their  own 
individual  and  voluntary  powers  for  the  regula- 
tion of  their  own  affairs,  and  the  less  likely  they 
will  be  to  tolerate  a  regime  in  which  a  broad  field 
of  freedom  of  individual  action  is  not  secured.  Their 
intellectual  advancement  will  enable  them  to  dis- 
cover the  means,  in  very  many  cases,  whereby  to 
correct  abuses,  without  calling  in  the  assistance  of 
the  State,  and  increased  morality  will  render  possi- 
ble the  practical  operation  of  these  means. 


CHAPTER  XIII 

GOYEKNMENTS  :    THEIR   CLASSIFICATION 

As  indicated  in  the  opening  chapter,  the  purpose 
of  this  work  does  not  require  us  to  consider  in  any 
detail  the  organization  of  the  State.  The  character 
of  political  Sovereignty  is  no  more  bound  up  with 
the  manner  in  which  its  power  is  exercised  than  is 
man's  nature  determined  by  the  form  of  his  physical 
frame.  When,  therefore,  we  consider  the  nature  of 
the  State,  we  do  not  need  to  be  concerned  with  its 
form.  We  have  to  do  with  its  ontology,  not  its  mor- 
phology. At  the  same  time,  to  such  an  extent  are 
governmental  terms  used  in  all  political  treatises 
and  discussions,  that  one  of  the  main  objects  of  this 
work,  which  is  to  render  political  phraseology  more 
definite,  would  not  be  performed,  did  we  not  stop 
to  examine  the  nomenclature  ordinarily  employed 
in  distinguishing  the  various  forms  of  political 
organizations. 

To  one  who  has  pursued  the  arguments  of  the  pre- 
ceding pages  it  need  not  be  said  that  there  can 
be  no  such  thing  as  a  classification  of  States,  as 
States.  In  essence  they  are  all  alike,  —  each  and  all 
being  distinguished  by  the  same  sovereign  attributes. 
Hence  it  follows  that  the  only  manner  in  which 
States   may  be    differentiated    is    according   to   the 

351 


352  THE  NATUKE  OF  THE   STATE 

structural  peculiarities  of  their  governmental  organi- 
zations. It  is  therefore  the  purpose  of  this  chapter 
to  consider  briefly  the  various  groups  into  which 
governments  have  been  segregated,  and  to  advert 
shortly  to  the  respective  merits  of  the  principles  of 
classification  upon  which  these  groups  have  been 
founded. 

In  two  particulars,  all  governments  are  necessarily 
alike :  first,  their  duties  are  of  a  threefold  char- 
acter, —  legislative,  executive,  and  judicial ;  and 
secondly,  the  quantum  of  their  power  is  the  same. 
It  may  be  that  the  exercise  of  these  three  orders  of 
functions  is  not  entrusted  to  independent  or  distinct 
organs,  and,  indeed,  their  absolute  separation  is  im- 
possible ;  yet,  however  united  or  separated,  they  are 
distinguishable  duties  that  must  be  performed  by 
every  State. 

That  the  quantum  of  power  exercised  by  all  gov- 
ernments must  be  the  same  follows  from  the  fact 
that,  as  has  been  stated,  all  States  are  necessarily 
completely  organized  within  their  governments. 
The  apparent  differences  in  the  scope  of  powers  pos- 
sessed, arise  from  the  manner  in  which  the  totality 
of  political  power  is  distributed  among  the  various 
organs,  and  the  character  of  these  organs  them- 
selves. Thus,  in  the  modern  constitutional  State, 
a  very  considerable  amount  of  the  State's  power 
is  denied  the  ordinary  legislative  and  executive 
bodies,  and  is  granted  to  special  constitutional  or- 
gans whose  activity  is  seldom,  and  with  difficulty, 
called    into    operation.       In    other    countries    also, 


GOVERNMENTS:    THEIR  CLASSIFICATION  353 

where  these  formal  legal  limitations  do  not  exist, 
the  temper  of  the  people  and  other  political  condi- 
tions determine  the  extent  to  which  the  government 
shall  habitually  extend  its  influence  and  regulative 
force. 

Since  all  States  are  legally  absolute,  there  can  be 
no  losrical  distinction  between  such  as  are  free  and 
such  as  are  despotic.  As  Austin  says:  "Every  su- 
preme government  is  free  from  legal  restraints :  or 
(what  is  the  same  proposition  dressed  in  a  different 
phrase)  every  supreme  government  is  legally  despotic. 
The  distinction,  therefore,  of  governments  into  free 
and  despotic,  can  hardly  mean  that  some  of  them  are 
freer  from  restraints  than  others ;  or  that  the  sub- 
jects of  the  governments  which  are  denominated  free, 
are  protected  against  then-  governments  by  positive 
law."^  Furthermore,  as  Austin  then  explains,  these 
terms  cannot  properly  have  reference  to  the  amount 
of  political  liberty  left  to  the  subjects.  "  For  the 
epithet  '  free '  importing  praise,  and  the  epithet  '  des- 
potic '  importing  blame,  they  who  distinguish  govern- 
ments into  free  and  despotic  suppose  that  the  first 
are  better  than  the  second.  But  inasmuch  as  politi- 
cal liberty  may  be  generally  useful  or  pernicious,  we 
cannot  infer  that  a  government  is  better  than  an- 
other government,  because  the  sum  of  the  liberties 
which  the  former  leaves  to  its  subjects  exceeds  the 
sum  of  liberties  which  are  left  to  its  subjects  by  the 
latter.  The  excess  in  the  sum  of  the  liberties  which 
the    former   leaves   to   its    subjects   may   be  purely 

1  The  Province  of  Jurisprudence  Determined,  ed.  1861,  p.  211. 
2a 


354  THE  NATURE   OF  THE   STATE 

mischievous.  It  may  consist  of  freedom  from  re- 
straints whicli  are  required  by  the  common  weal."^ 
Continuing,  he  then  shows  that  the  only  proper 
sense  in  which  the  distinction  in  question  may  be 
applied  is  as  expressing  a  judgment  whether  or  not 
a  given  government  grants  to  its  people  all  that 
amount  of  liberty  which,  everything  considered, 
would  best  conduce  to  the  general  welfare.  Thus 
also  says  Hobbes :  "The  difference  between  the 
kinds  or  forms  of  commonwealth  consisteth  not  in 
a  difference  between  their  powers,  but  in  a  difference 
between  their  aptitudes  to  produce  the  peace  and 
security  of  the  people,  which  is  their  end."^ 

As  has  been  elsewhere  said  in  this  work,  the  aim 
of  written  constitutions  has  not  been  to  limit  the 

1  The  Province  of  Jurisprudence  Determined,  ed.  1861,  p.  244. 

2  Quoted  by  Austin,  op.  cit.  p.  248.  "If  it  be  objected,"  says 
Sidney,  "  that  I  am  a  defender  of  arbitrary  powers,  I  confess  I  cannot 
comprehend  how  any  society  can  be  established  or  subsist  without 
them.  The  difference  between  good  and  ill  governments  is  not  that 
those  of  one  sort  have  an  arbitrary  power  which  the  others  have  not, 
for  they  all  have  it ;  but  that  in  those  which  are  well  constituted,  this 
power  is  so  placed  as  it  may  be  beneficial  to  the  people."  To  the 
same  effect,  see  Paley,  IforoZ  and  Political  Philosophy,  Bk.VI.  Chap.VI; 
and  Sir  William  Temple,  On  the  Ovifjinal  and  Nature  of  Government, 
8th  ed.  Vol.  II.  p.  34.  Cf.  also  G.  C.  Lewis,  Use  and  Abuse  of  Polit- 
ical Terms,  Chap.  XVI.  It  will  be  observed  that  this  last  author 
makes  a  different  use  of  these  terms  from  that  which  we  have 
accepted  ;  despotism  with  hitn  having  reference  solely  to  "  the  sovereign 
rule  of  one  person,"  and  not  to  be  confounded  with  tyranny,  which 
may  signify  the  oppressive  government  of  any  number.  It  should  be 
noticed  here,  that  in  the  woik  of  Lewis  is  contained  the  first  serious 
attempt  by  an  English  writer  to  discriminate  between  the  names 
applied  to  the  various  forms  of  government,  and,  though  we  have 
not  l)een  able  to  follow  his  judgment  in  the  instance  we  have  just 
been  discussing,  in  other  portions  of  this  chapter  we  have  been 
matei-ially  assisted  by  his  views. 


GOVERNMENTS:    THEIR   CLASSIFICATION  355 

powers  of  the  State,  nor,  in  the  aggregate,  those  of 
the  government.  Their  purpose  has  been  more  to 
secure  the  people  against  their  own  fickleness  and  lia- 
bility to  temporary  passion,  and  against  the  danger  of 
arbitrary  action  on  the  part  of  their  rulers.  We  say 
that  this  is  the  aim  of  States  with  ivritten  constitu- 
tions, for  the  simple  adjective  "constitutional"  adds 
no  additional  qualification  to  the  substantive  State, 
for  all  States  are  necessarily  such.  By  the  constitu- 
tion of  a  State  is  meant  the  principles  that  control  its 
governmental  organization  and  the  distribution  of  its 
powers,  whether  these  principles  be  reduced  to  defi- 
nite written  form  or  not ;  and  in  this  sense  the  most 
autocratic  of  governments  has  its  constitution,  just 
as  much  as  the  atheist  has  his  creed,  as  well  as  the 
most  Calvinistic  believer. 

We  have  already  shown  in  our  study  of  the  Com- 
posite State  the  impropriety  of  the  division  of  States 
into  sovereign  and  non-sovereign,  and,  as  a  conse- 
quence, the  technical  incorrectness  of  the  term  "  Fed- 
eral State,"  unless  used  simply  to  designate  that  form 
of  political  organization  in  which  the  State's  territory 
is  divided  into  administrative  districts,  to  the  organs 
of  which  a  considerable  degree  of  independence  of 
action  is  secured. 

From  the  standpoint  of  the  variety  of  powers  com- 
monly exercised,  governments  have  also  been  termed 
legal  (Rcchtsstaat),  paternal,  socialistic,  or  commu- 
nistic. So  far  as  these  are  distinguishable  forms,  we 
have  considered  them  in  the  preceding  chapter. 

Historically  viewed,  governments  have  been  classi- 


356  THE  NATURE   OF  THE   STATE 

fied  as  ancient,  classic,  medigeval,  modern,  and  the 
like,  such  names  obviously  indicating  no  special 
peculiarities  of  form,  except  in  so  far  as  we  are  ac- 
customed to  connect  certain  types  of  rule  with  cer- 
tain chronological  periods.  Surveying  generally, 
however,  the  sequence  of  political  forms  as  they 
have  been  successively  manifested  in  history,  the 
interesting  question  arises  whether  or  not  there  is  a 
natural  course  of  governmental  development  under 
normal  conditions ;  that  is,  for  a  State  whose  progress 
during  a  considerable  period  of  time  is  not  seriously 
interrupted  by  external  interference  or  conquest. 

The  most  usual  form  in  which  this  alleged  law  of 
growth  is  stated  by  those  who  would  give  an  affirm- 
ative answer,  is  that  such  growth  is  in  circles,  and 
that  periodically  a  government  returns  to  its  original 
type  and  begins  again  its  development,  though  prob- 
ably each  time  upon  a  different  and  higher  plane, 
much  in  the  order  of  Vico's  theory  of  the  spiral  prog- 
ress of  civilization  in  general.  Thus  it  is  said  that 
in  the  early  formative,  constructive  periods  of  a 
People's  history,  the  tendency  is  necessarily  towards 
a  centralization  of  rule.  Hence  it  was  that  absolute 
monarchy  was  almost  universal  in  early  times,  and 
still  exists  in  the  less  civilized  countries.  The  evils 
of  absolute  monarchy  lead  in  time,  however,  to  a  les- 
sening of  its  individual  caprice  and  selfishness,  by  a 
widening  of  the  political  power.  This  phase  was 
represented  in  the  abolishment  of  kingship  in  early 
Greece  and  Rome,  and  in  the  gradual  curtailment  of 
the  powers  of  the  English  king.     But  no  more  than 


GOVERNMENTS:    THEIR   CLASSIFICATION  357 

autocratic  rule  does  the  aristocratic  rule  that  takes 
its  place,  seem  qualified  to  endure.  The  increase 
in  general  enlightenment  and  the  consequent  widen- 
ing of  political  consciousness  inevitably  creates  in 
time  a  demand  for  a  more  general  participation 
of  the  people  in  political  rule,  —  a  demand  that  is 
only  satisfied  by  the  establishment  of  democracy. 
Illustrations  of  this  are  seen  in  the  constitutional 
history  of  England  since  the  first  reform  act,  in 
the  republican  period  of  Rome's  history,  and  in 
Europe  generally  to-day.  The  popularization  of 
political  principles  once  begun,  the  remaming  steps 
to  complete  manhood  suffrage  seem  to  follow  as 
an  inevitable  result.  Nulla  vestigia  retrorsum  is 
the  motto  of  the  movement,  and  we  have  no  his- 
torical instance  of  a  people  among  whom  popular 
government  has  proceeded  to  any  considerable  ex- 
tent, that  has  voluntarily  restricted  the  exercise 
of  the  suffrage,  or  among  whom  a  true  political 
aristocracy  has  been  again  established.  When 
change  does  come  it  is  rather  a  return  to  autoc- 
racy. The  disorders  that  arise  from  democracy, 
when  corrupted  or  pushed  to  its  extremes,  awaken 
the  desire  for  a  more  stable  and  efficient  public 
control.  Thus,  as  in  Home  under  the  Caesars,  and  in 
France  under  Napoleon  I.,  the  State  is  rescued  from 
democratic  disorder  by  the  strong  hand  of  a  military 
despot.  Monarchy  thus  re-established,  governmental 
development  begins  again. 

Aside  from  the  need  of  a  firm  hand  to  control 
domestic    confusion,   the   one    great   factor   in   the 


358  THE   NATUKE   OF  THE   STATE 

creation  of  autocracy  is  war.  The  need  of  a  unity 
of  control  and  a  full  swing  of  power  is  then  rec- 
ognized by  all  as  imperative;  and  once  endowed 
with  power,  a  commander  with  a  victorious  army 
at  his  back,  and  with  a  people  already  accustomed 
to  autocratic  rule,  is  easily  able  to  retain  his  do- 
minion after  the  necessity  for  its  exercise  is  past. 
Thus  every  great  danger  to  Holland  —  in  1607, 
1672,  1747  —  resulted  in  an  increase  in  the  power 
of  the  monarchical  Orange  party,  and  depressed 
the  influence  of  the  republican  party  of  Grotius 
and  De  Witt.  In  times  of  foreign  danger,  Rome, 
with  all  her  hatred  of  kingship,  was  obliged  to  sub- 
mit to  the  Dictatorship.^ 

Such,  in  short,  as  above  stated,  is  claimed  by 
many  to  be  the  normal  course  of  governmental  de- 
velopment. By  those  who  characterize  the  State  as 
a  "  natural  organism,"  this  is  viewed  as  a  description 
of  its  "life" — its  birth,  growth,  decay,  death,  and 
new  creation. 

But  we  scarcely  need  seriously  consider  the  claim 
of  a  "  natural "  or  irresistible  law  of  political  de- 
velopment. The  statement  of  the  above  observa- 
tions contains,  however,  a  suggestion  of  a  valuable 
truth,  in  that  it  indicates,  that  to  each  form  of 
government  is  joined  its  peculiar  weaknesses  and 
special  dangers ;  that  autocratic  power  is  apt  to  lead 
to  selfish  and  cruel  rule ;  that  aristocracies  cannot 
long  maintain  their  power  unless  their  privileges 
be  founded  upon  ability  and  repaid  by  actual  ser- 

^  Cf .  Roscher,  Poliiik,  pp.  145  et  seq. 


GOVERNMENTS:    THEIR   CLASSIFICATION  359 

vices;  and  that  democracy  demands  widespread  in- 
telligence, active  participation  in  political  matters, 
and  a  love  of  liberty  united  with  a  law-abiding 
spirit  and  tolerance  of  proper  control. 

But  there  is  no  necessary  lack  of  permanence  in 
any  of  these  forms  of  government.  Their  duration 
depends  only  upon  avoidance  of  error  and  adapta- 
tion to  circumstances.  Given  the  proper  conditions 
and  a  certain  degree  of  wisdom  on  the  part  of 
those  in  power,  and  there  is  no  inherent  reason 
why  any  regime  should  not  persist  for  all  time. 
The  Chinese  Empire  demonstrates  the  possibility 
of  a  comparatively  unenlightened  and  inefficient 
form  of  public  control  existing  for  many  centuries. 

Turning  now  more  directly  to  the  classification 
of  governments,  irrespective  of  their  good  or  bad 
qualities,  we  find  it  a  comparatively  easy  task  to 
separate  them  into  distinct  groups  according  to  the 
possession  or  non-possession  by  them  of  some  one 
selected  feature.  Thus,  for  example,  it  is  entirely 
feasible  to  classify  them  according  to  whether 
founded  on  written  or  unwritten  constitutions; 
whether  possessed  of  unicameral  or  bicameral  leg- 
islatures; whether  the  chief  executive  power  be  in 
the  hands  of  a  single  individual  or  of  a  number; 
whether  this  executive,  single  or  collegiate,  be 
hereditary  or  elective,  and,  if  the  latter,  whether 
the  tenure  of  office  be  for  a  number  of  years  or  for 
life,  etc.,  etc.  At  the  same  time  it  does  not  need 
to  be  said  that  groupings  such  as  these  are  of  an 


360  THE  NATURE  OF  THE   STATE 

eminently  unsatisfactory  character.  They  demand 
a  segregation  of  governments  which,  though  agree- 
ing in  the  possession  of  the  feature  selected  as  a 
basis  of  distinction,  are  otherwise  widely  dissimilar. 
Nevertheless,  differences  of  structure  seem  to  offer 
the  only  true  means  of  distinguishing  governments 
in  kind.  Our  problem,  therefore,  necessarily  nar- 
rows itself  down  to  the  discovery  of  that  one  among 
the  several  possible  bases  of  distinction  that  best 
embodies  the  essential  fundamental  principles  of 
civic  life. 

The  Aristotelian  Classification.  — We  have  already 
used  the  terms  "Monarchy,"  "Aristocracy,"  and 
"Democracy,"  as  indicating  in  a  general  way  the 
rule  of  the  one,  the  few,  or  the  many.  Employed 
in  this  sense  they  constitute  the  most  widely  ac- 
cepted, as  well  as  the  oldest,  classification  of  gov- 
ernments known  to  history.  Pindar,  in  the  fifth 
century  B.C.,  in  his  second  Pythian  Ode,  distin- 
guishes between  the  rule  of  a  tyrant,  of  a  democ- 
racy, and  of  an  aristocracy  composed  of  the  wise. 
Herodotus  too  makes  a  substantially  similar  dis- 
tinction in  his  History,  where  he  narrates  the  debate 
that  followed  the  death  of  the  false  Smerdis,  be- 
tween the  Persian  chiefs  as  to  what  form  of  govern- 
ment should  be  established ;  Thucydides  implies  the 
same  in  his  report  of  the  speech  of  the  Syracusan 
Athenagoras,  as  does  Socrates,  according  to  his 
Memorabilia  as  preserved  by  Xenophon.  The  best 
and  most  classic  statement,  however,  of  this  triple 


GOVERNMENTS:    THEIR   CLASSIFICATION  361 

division   is    that   given    by   Aristotle.^      "Wherefore 
this  classification  has  since  borne  his  name. 

It  will  not  be  of  any  material  service  to  ns  to 
show  the  manner  in  which  Aristotle  connected  a  cor- 
rupt form  with  each  of  the  normal  forms,  —  tyranny 
with  monarchy,  oligarchy  with  aristocracy,  and  och- 
locracy, or  the  democratic  rule  of  the  worst  classes, 
with  "polity"  (TroXtreta),  or  constitutional  democracy.^ 
Nor  shall  we  be  benefited  by  showing  historically 
the  manner  in  which  this  classification  was  received 
by  succeeding  philosophers.  It  is  sufficient  to  say, 
that,   if   not   literally   copied,    it   was    substantially 

1  Politics,  Bk.  in.  Chap.  VI. ;  Ethics,  Bk.  VIII.  Chap.  Xn. 

2  Blackstone,  who  accepts  substantially  the  Aristotelian  trinity 
of  governments,  together  with  their  "  corrupt "  types,  is  criticised  in 
the  following  characteristic  manner  by  Bentham :  "  Other  s]Decies  of 
governments,  we  are  given  to  understand,  there  are  besides  these," 
says  Bentham,  "  but  even  those  others,  if  not  '  reducible  to,'  are  but 
'corruptions  of  these.'  Now  what  there  is  in  any  of  these  to  be  cor- 
rupted, is  not  so  easy  to  understand.  The  essence  of  these  several 
forms  of  government,  we  must  always  remember,  is  placed  by  him, 
solely  and  entirely,  in  the  article  of  number;  in  the  ratio  of  the  num- 
ber of  the  governors  ...  to  that  of  the  governed.  If  the  number  of 
the  former  be,  to  that  of  the  latter,  as  one  to  all,  then  is  the  form  of 
government  a  Monarchy;  if  as  all  to  all,  then  is  it  a  Democracy;  if 
as  some  number  hetiveen  one  and  all,  then  is  it  an  Aristocracy.  Now 
then,  if  we  can  conceive  a  fourth  number,  which,  not  being  more  than 
all,  is  neither  one  nor  all,  nor  anything  between  one  and  all,  we  can 
conceive  a  form  of  government,  which,  upon  due  proof,  may  appear 
to  be  a  corruption  of  some  one  or  other  of  these  three.  If  not,  we 
must  look  for  the  corruption  somewhere  else.  Suppose  it  were  in  our 
author's  reason."  And  in  a  note,  he  adds  :  "  A  more  suitable  place  to 
look  for  corruption  in,  if  we  may  take  his  (Blackstone's)  own  word  for 
it,  there  cannot  be.  '  Every  man's  reason,'  he  assures  us, '  is  corrupt ' ; 
and  not  only  that,  but '  his  understanding  full  of  ignorance  and  error.' 
With  regard  to  others  it  were  as  well  not  to  be  too  positive,  but  with 
regard  to  a  man's  self,  what  he  tells  us  from  experience,  it  would  be 
ill  manners  to  dispute."  —  Fragment  on  Government,  Chap.  II.  §  xxix. 


362  THE   NATURE   OF  THE   STATE 

adopted  as  a  rule  by  them  all  until  comparatively 
recent  times.  What  modifications  this  division  has 
received  at  their  hands,  and  what  substitutes  have 
been  offered  for  it,  will  appear  in  our  inquiry  as  to 
its  scientific  adequacy, — an  inquiry  to  which  we 
now  proceed. 

An  examination  of  this  subject  will  show  to  us, 
we  think,  that  the  terms  "  Monarchy,"  "Aristocracy," 
and  "Democracy"  do  not  lend  themselves  to  the  de- 
scription of  distinct  forms  of  government ;  and  that, 
as  commonly  used  to-day,  they  represent  the  loosest 
order  of  political  thinking,  being  employed  some- 
times to  describe  merely  formal  distinctions,  at  other 
times  to  denote  the  location  of  legal  sovereignty, 
and  at  still  others,  to  indicate  the  actual  extent  of 
that  diffusion  of  political  influence  which  ultimately 
conditions,  though  it  does  not  voice,  the  legal  will 
of  the  State. 

No  one  has  pointed  out  this  confusion  more  plainly 
than  Sir  G.  C.  Lewis  in  his  Use  and  Abuse  of  Polit- 
ical Terms.  Beginning  with  Monarchy,  he  shows 
that  while  the  term  is  usually  defined  as  that  form 
of  government  in  which  the  sovereign  power  is  in 
the  hands  of  one  person,  yet,  as  a  matter  of  fact, 
States  are  to-day  universally  termed  monarchical  in 
which  the  nominal  chief,  as  in  England,  possesses 
only  a  shadow  of  the  supreme  power ;  and,  on  the 
other  hand.  States  denominated  democratic  in  which 
the  chief  executive  has  a  very  considerable  degree  of 
legal  power.  And  to  this  it  cannot  be  retorted  that 
in  the  one  case  the  rule  is  obtained  by  hereditary 


GOVERNMENTS:    THEIR   CLASSIFICATION  363 

descent,  and  in  the  other  by  election,  and  that  this 
may  therefore  be  the  determining  test;  for  history 
gives  examples  where  the  monarch  is  elected,  as, 
for  example,  the  Koman  King  before  the  expulsion 
of  the  Tarqnins.  As  a  conclusion,  therefore,  it 
appears  that,  according  to  popular  usage,  the 
term  "Monarchy"  is  used  simply  in  the  formal 
sense  as  designating  those  States  whose  political 
chiefs  happen  to  be  called  King  or  Prince,  and 
irrespective  of  the  actual  structure  of  government 
or  the  distribution  of  political  power.  Thus,  ac- 
cording to  this  phraseology,  Austria,  Russia,  and 
England  are  grouped  together  as  monarchies  and 
opposed  to  the  United  States  as  a  republic  or  de- 
mocracy; while  in  truth  the  institutions  of  England 
are  far  more  similar  to  those  of  the  United  States 
than  to  those  of  the  countries  with  which  it  is 
classified. 

In  the  second  place,  the  Aristotelian  classification 
furnishes  no  distinct  line  of  demarkation  between 
aristocracy  and  democracy,  when  it  defines  the  one 
as  the  rule  of  the  few,  and  the  other  as  the  rule 
of  the  many ;  or,  as  it  has  been  otherwise  ex- 
pressed, with  an  attempt  at  greater  definiteness,  as 
the  rule  of  the  minority  and  the  majority  respec- 
tively. When  democracy  is  spoken  of  as  being  the 
rule  of  the  many  or  of  the  masses,  of  how  many 
are  we  speaking,  and  who  are  to  be  held  as  con- 
stituting "  the  masses  "  ?  It  is  of  course  not  meant 
that,  in  such  a  form,  every  individual  participates  in 
the  conduct  of  the  affairs  of  the  State,  for  women 


364  THE  NATURE   OF  THE   STATE 

and  minors  are  almost  universally  excluded.  Nor 
does  it  mean  in  common  usage  that  certain  classes 
of  adults  may  not  be  excluded  from  political  privi- 
leges by  means  of  the  imposition  of  an  educational 
or  property  qualification.  Thus,  as  a  matter  of  fact, 
in  the  most  popularly  organized  governments  of  to- 
day, the  electorate  includes  scarcely  more  than  a 
fifth  of  the  entire  population.  If,  then,  the  distinc- 
tion between  democracy  and  aristocracy  is  to  be  one 
of  numbers,  where  is  the  line  to  be  drawn?  At 
what  point  does  democracy  merge  into  aristocracy  ? 
The  boundary  line  is  not  between  the  minority  and 
the  majority. 

But  there  is  still  another  difficulty.  We  have 
been  speaking  as  though  the  extension  of  the  suf- 
frage were  synonymous  with  that  distribution  of  po- 
litical power  upon  which  the  Aristotelian  trinity  is 
based.  But  such  is  not  the  case.  This  point  has 
already  been  indicated  in  our  treatment  of  the  loca- 
tion of  Sovereignty.  Voting  capacity  for  the  election 
of  public  officials  is  not  equivalent  to  participation 
in  the  sovereign  power,  the  one  being  merely  the 
power  of  assisting  in  the  determination  of  what 
person  shall  possess  a  share  of  the  supreme  power ; 
and  the  other  being  a  direct  exercise  of  that  power. 
Nor  is  the  condition  changed,  when  reference  is  had 
to  the  exercise  of  actual  political  influence  as  con- 
trasted with  legal  power.  "  Legislate  how  you  will," 
says  Stephen,  "  establish  universal  suffrage,  if  you 
think  proper,  as  a  law  which  can  never  be  broken. 
You  are  still  as  far  as  ever  from  political  equality. 


GOVERNMENTS:    THEIR   CLASSIFICATION  365 

Political  power  lias  changed  its  shape,  but  not  its 
nature.  The  result  of  cutting  it  up  into  little  bits  is 
simply  that  the  man  who  can  sweep  the  greatest 
number  of  them  into  a  heap  will  govern  the  rest. 
The  strongest  man  in  some  form  or  other  will  always 
rule  the  rest.  If  the  government  is  a  military  one, 
the  qualities  which  make  a  man  a  great  soldier  will 
make  him  a  ruler.  If  the  government  is  a  monarchy, 
the  qualities  which  kings  value  in  counsellors,  in  gen- 
erals, in  administrators,  will  give  power.  In  a  pure 
democracy  the  ruling  men  will  be  the  wire-pullers 
and  their  friends ;  but  they  will  no  more  be  on  an 
equality  with  the  voters  than  soldiers  or  ministers 
of  state  are  on  an  equality  with  the  subjects  of  a 
monarchy.  Changes  in  the  form  of  government  alter 
the  conditions  of  superiority  more  than  its  nature. 
...  In  all  ages  and  under  all  circumstances  the 
rank  and  file  are  directed  by  leaders  of  one  kind  or 
another  who  get  the  command  of  their  collective 
force.  ...  In  short,  the  subdivision  of  political 
power  has  no  more  to  do  with  equality  than  with 
liberty."  ^ 

The  matter  is  not  mended,  when  to  the  electoral 
right  is  joined  that  of  eligibility  to  office.  Such  eligi- 
bility creates  at  most  only  a  potential  political  power, 
which  does  not  become  realized  until  its  possessors 
are  actually  elected  or  appointed  to  office.  In  all 
governments,  however  popularly  organized,  there  is 
then  the  virtual  rule  of  a  small  minority,  whether 
we  have  reference  to  the  exercise  of  legal  power  by 

1  Liberty,  Equality,  Fraternity,  ed.  1873,  p.  240. 


366  THE  NATUEE   OF  THE   STATE 

those  in  office,  or  to  the  party  leaders  who  are  able  to 
"sweep  together"  the  greatest  number  of  political 
bits. 

It  may  be  asked,  however,  whether  it  will  not 
be  proper  to  term  that .  government  an  aristocracy, 
in  sensu  strictiore,  in  which  the  sole  rule  is  in  the 
hands  of  a  minority,  who  hold  their  power  by  their 
own  right ;  that  is,  independently  of  election  or  ap- 
pointment. Such  has  been  the  definition  sometimes 
given  to  this  term,  but  it  is  to  be  observed  that 
though  sufficiently  definite,  it  is  futile,  as  being 
scarcely  applicable  to  a  single  government  now 
existing.  Classes  of  citizens  having  special  political 
and  other  privileges  of  their  own  right  exist  in 
many  countries  in  the  Old  World.  But  in  none  of 
these  do  they  possess  the  totality  of  the  sovereign 
power.  They  therefore  constitute  but  one  of  the 
elements  of  their  respective  governments ;  and,  so 
long  as  their  power  is  shared  by  monarchical  or 
democratic  organs,  there  is  no  sufficient  reason 
for  terming  such  governments  aristocratic  rather 
than  monarchical  or  democratic. 

The  final  conclusion  that  we  must  draw  from 
the  above  somewhat  long  commentary  is,  that  the 
only  valuable  use  to  which  the  three  terms,  which 
we  have  been  considering,  may  be  put,  is  as  descrip- 
tive, not  so  much  of  the  forms  of  governments, 
as  to  the  diffusion  of  political  consciousness  and 
influence  therein.  That  is  to  say,  the  adjectives 
monarchic,  aristocratic,  and  democratic  are  to  be 
employed   as   distinguishing    certain    characteristics 


GOVERNMENTS:    THEIR   CLASSIFICATION  367 

of  State  life ;  and,  as  such,  may  all  three  coexist  in 
the  same  political  organization.  According  to  this, 
a  given  government  may  be  designated  in  a  certain, 
though  not  very  definite,  sense  as  either  democratic, 
aristocratic  or  monarchic,  according  to  which  one 
of  these  elements  is  respectively  of  predominant 
influence ;  just  as  a  person  is  termed  good  or  bad, 
selfish  or  benevolent,  and  the  like,  without  meaning 
thereby  that  such  person  is  wholly  good  or  selfish, 
or  the  reverse.  It  would  be  a  task  of  supererogation 
to  cite  those  elements  and  institutions  that  are  usu- 
ally connected  with  one  or  another  of  these  terms ; 
how  the  concentration  of  power  or  dignity  in  the 
hands  of  a  single  ruler  is  monarchic,  the  existence  of 
class  privileges  aristocratic,  and  the  general  diffusion 
of  power  democratic.  Nor  will  it  be  necessary  to 
show  further  than  has  been  already  indicated,  that 
any  government  must  contain,  in  varying  degrees, 
all  three  of  these  elements.  The  amount  of  dis- 
cretionary power  necessarily  left  in  the  hands  of 
the  chief  executive  in  any  popular  government 
is  monarchical  in  character,  and  the  result  of  the 
representative  system  is  to  combine  the  rule  of  a 
selected  few  with  general  democratic  power. 

Schleiermacher  has  pointed  out  how  fundamental 
is  the  distinction  based  upon  the  degree  of  diffusion 
of  the  political  power.^  The  State,  however  organ- 
ized, necessarily  rests  upon  the  people  and  is  an 
organization  of   them,  and  no  more  essential   prin- 

1  Ueher  die  Beqriffe  der  verschiedenen  Staatsformen  (Abhandlungen 
der  Berliner  Akademie,  1814). 


368  THE  NATURE   OF  THE   STATE 

ciple  can  therefore  be  discovered  than  that  which 
has  reference  to  the  extent  to  which  the  political 
consciousness  has  pervaded  their  minds  as  a  whole, 
and  led  to  a  participation  in,  or  at  least  a  deter- 
minative influence  upon,  the  administration  of  public 
affairs.  The  only  trouble  is,  as  has  been  already 
said,  that  this  affords  a  criterion  of  distinction  that 
does  not  admit  of  sufficiently  definite  determination 
to  serve  as  a  means  of  exact  classification  of  govern- 
ments. The  spirit  of  constitutions  changes  long 
before  their  names  and  forms,  and  thus  in  periods 
of  transition  it  is  frequently  a  matter  of  individual 
opinion  whether  this  or  that  element  is  relatively 
dominant. 

The  impossibility  of  conceiving  given  governments 
as  purely  autocratic,  aristocratic,  or  democratic,  early 
led  to  the  theory  of  the  so-called  "  mixed  "  State,  or 
that  State  in  which  these  several  features  are  united 
in  varying  proportions.  The  acceptance  of  this 
hybrid  type  dates  from  the  earliest  times,  being 
accepted  by  Aristotle  himself,  by  Plato,  Polybius, 
Cicero,  and  Tacitus,  and  by  mediaeval  and  modern 
writers  generally ;  some  holding  that  all  govern- 
ments are  necessarily  mixed  in  character,  others 
asserting  that  there  may  be  both  simple  and  mixed 
forms.  To  those  who  deny  that  there  are  any  simple 
governments,  that  all  are  mixed,  Lewis  remarks  that 
"  to  call  this  a  classification  of  governments  is  not 
less  an  abuse  of  language  than  to  call  the  offence  of 
one  man  a  conspiracy ;  it  is,  in  effect,  a  denial  of  all 
classification,  an  abolition  of  all  distinction  between 


GOVERNMENTS:    THEIR   CLASSIFICATION  369 

different   classes   of    governments,   which   are   thus 
joined  together  in  one  undistinguished  heap."  ^ 

But,  as  Lewis  further  points  out,  to  speak  of  any 
government  as  being  mixed  is  necessarily  to  abandon 
the  threefold  classification  based  upon  the  number 
admitted  to  rule.  '•  This  notion,"  says  he,  "  is  sub- 
ject to  the  obvious  difficulty  that,  as  the  triple  divi- 
sion of  governments  is  strictly  accurate  and  logical, 
it  must  be  exhaustive,  and  its  members  must  be 
opposed  to  one  another;  whence  it  follows,  that 
there  can  be  no  form  of  government  which  is  not 
one  of  these  three,  and  that  a  combination  of  any 
two  of  them,  much  more  of  all  three,  is  as  incon- 
ceivable as  that  a  number  should  be  odd  and  even  at 
the  same  time ;  inasmuch  as  the  notion  of  one  ex- 
cludes that  of  any  other.  For  example :  monarchy 
is  the  government  of  one,  aristocracy  of  more  than 
one :  therefore,  as  a  State  cannot  be  governed  both 
by  one  person  and  by  several,  it  cannot,  at  the  same 
time,  be  both  a  monarchy  and  an  aristocracy.  Aris- 
tocracy is  a  government  of  less  than  half,  democracy 
of  more  than  half,  the  community ;  therefore,  as  a 
State  cannot,  at  the  same  time,  be  governed  by  more 
and  less  than  half  its  members,  it  cannot  be,  at  the 
same  time,  a  democracy  and  an  aristocracy.  Still 
less  can  it  be  governed  by  one,  by  a  minority,  and  a 
majority  of  its  members  all  at  once."  ^ 

The  idea  of  the  mixed  State  has  been  attacked 

^  Use  and  Abuse  of  Political  Terms,  p.  87. 

2  Idem,  p.  72.     Compare  this  with  Beutham's  reasoning  in  refer- 
ence to  "  corrupt "  forms,  cited  in  a  note  on  p.  360. 
2b 


370  THE   NATURE   OF  THE   STATE 

from  still  another  standpoint ;  namely,  from  that 
of  the  necessary  unity  of  Sovereignty.  Thus  says 
Bluntschli :  "  Such  a  mixture  as  this  does  not  create 
a  new  form  of  State,  for  the  supreme  governing 
power  is  still  concentrated  in  the  hands  of  the 
monarch,  or  of  the  aristocracy,  or  of  the  people."  ^ 
The  Aristotelian  division  depends,  says  he,  "upon 
the  question  to  whom  the  supreme  administrative 
power  belongs.  This  latter  cannot  be  divided,  not 
even  between  a  king  and  his  ministers,  for  this 
would  create  a  dyarchy  or  triarchy,  and  would 
be  opposed  to  the  essential  character  of  a  State, 
which  as  a  living  organism  requires  unity.  In  all 
living  beings  there  is  a  variety  of  powers  and 
organs,  but  in  this  variety  there  is  unity.  Some 
organs  are  superior  and  others  inferior,  but  there 
is  always  one  supreme  organ,  in  which  the  direct- 
ing power  is  concentrated.  The  head  and  the  body 
have  no  separate  and  independent  life,  but  they 
are  not  equal.  So  also  for  the  State,  a  supreme 
organ  is  a  necessary  condition  of  its  existence,  and 
this  cannot  be  split  into  parts,  if  the  State  itself 
is  to  retain  its  unity.  There  is  not,  therefore,  any 
fourth  form  of  State  as  has  been  called  a  Mixed 
State."  ^ 

While  agreeing  fully  with  Bluntschli  as  to  the 
essential  unity  of  the  State  (without  accepting  the 
"  organic  "  manner  in  which  it  is  conceived  by  him), 
it  will  nevertheless  be  observed  that  his   argument 

^  Tlieorxj  of  the  State,  trans.  2d  ed.,  p.  332. 
2  Idem,  pp.  333-4. 


GOVERNMENTS:    THEIR   CLASSIFICATION  371 

is  not  to  the  point,  being  directed  rather  to  the 
nature  of  the  State  than  to  the  character  of 
government.  The  reasoning  is  good  as  against 
the  mediosval  and  early  modern  writers  who  intro- 
duced an  essential  duality  into  the  State  itself,  by 
the  predication  of  a  contract,  and  of  an  opposition, 
between  the  '•  rights "  of  the  People  and  those  of 
the  Crown ;  but  it  is  not  valid  as  against  those 
who  distinguish  between  the  State  and  its  govern- 
ment, and  who  recognize  the  State's  personality, 
and  identify  Sovereignty  with  its  supreme  will :  — 
who,  in  other  words,  distinguish  between  the 
supreme  power  itself,  v/hich  is  essentially  a  unit; 
and  the  exercise  of  that  power,  which  may  be 
distributed  among  several  organs.  Thus,  because 
of  the  failure  to  make  this  distinction,  Bodin  held 
absolute  monarchy  alone  as  possible,  while  Althusius 
maintained  a  like  ground  for  democracy.  Hobbes, 
also,  though  holding  either  monarchy,  aristocracy, 
or  democracy  possible,  yet  denied  the  possibility  of 
a  union  of  two  or  more.  But  all  were  alike  at  fault 
in  identifying  the  agent  with  the  State  itself,  whose 
will  the  agent  merely  utters. 

In  conclusion  of  this  subject,  it  is  to  be  remarked, 
that  in  accepting  these  terms  as  descriptive  of  certain 
characteristics  of  State  life,  reference  is  had,  rather 
to  the  diffusion  of  that  ultimate  influence  that  con- 
ditions the  exercise  of  the  sovereign  power,  than  to 
the  division  of  the  actual  exercise  of  that  power. 
In  one  sense,  it  is  correct  to  hold,  to  be  sure,  that  in 
any  government  the  democratic  element  must  pre- 


372  THE   NATURE  OF  THE   STATE 

dominate,  for  however  autocratic  be  the  rule,  physi- 
cal force  is  necessarily  with  the  people,  and  their 
sentiment  must  be  in  the  long  run  the  dominant 
factor  in  politics.  But  admitting  this,  it  is  yet  to 
be  observed,  that  except  in  those  countries  where 
some  legal  means  are  provided  whereby  the  people 
may  render  explicit  their  wills,  their  ultimate  con- 
ditioning power  is  almost  wholly  of  a  negative, 
or  restraining  character.  It  sets  the  limits  be- 
yond which  political  oppression  shall  not  extend, 
but  it  does  not  positively  determine,  or  even  influ- 
ence, public  action  m  other  matters.  Therefore  that 
diffusion  of  political  power  to  which  reference  is 
had  in  distinguishing  between  a  monarchic,  aris- 
tocratic, and  democratic  constitution  of  the  gov- 
ernment, relates  to  the  extent  to  which  the  people 
generally  have  an  influence  that  is  effective  in 
determining  positively  the  public  policies  that  shall 
be  adopted,  and  the  functionaries  who  shall  exe- 
cute them. 

Other  Classifications.  —  The  defects  inherent  in 
the  Aristotelian  classification  have  led  a  considerable 
number  of  writers  to  prefer  a  twofold  division  of 
governments :  namely,  into  those  in  which  the  chief 
power  of  the  State  is  concentrated  in  the  hands  of 
a  single  individual ;  and  those  in  which  this  power 
is  divided  among  several.  Thus  says  Lewis  :  "  When 
the  whole  sovereign  power  over  a  community  belongs 
to  one  person,  the  government  is  called  a  monarchy  ; 
when  it  belongs  to  several  it  is  called  a  rejmhlic  or 


GOVERNMENTS:    THEIR   CLASSIFICATION  373 

commomoealtli."  ^  The  republic  he  again  divides 
into  an  aristocracy  or  democracy  according  to 
whether  a  minority  or  majority  of  the  people  rule. 
This  is  also  substantially  the  classification  accepted 
by  Montesquieu.^ 

The  advantage  of  this  dual  classification  as  com- 
pared with  the  Aristotelian  triplicity  obviously  con- 
sists in  the  initial  avoidance  of  the  confusion 
between  the  rule  of  the  few  and  of  the  many,  —  a 
confusion  that  is  not  reintroduced  unless  an  attempt 
is  made  to  subdivide  republics.  But,  as  is  equally 
obvious,  this  increased  definiteness  is  obtained  only 
by  a  corresponding  simplicity  of  division  and  limita- 
tion of  the  analysis,  which  carries  the  classification 
no  further  than  the  simple  distinction  between 
organic  and  inorganic  matter  would  carry  the  chem- 
ist in  a  separation  of  the  elements. 

Koscher  vigorously  opposes  the  twofold  division 
into  monarchies  and  republics,  on  the  ground  that 
the  distinction  between  aristocracy  and  democracy 
is  sharper   than   that    between   monarchy   and   the 

^  Use  and  Abuse  of  Political  Terms,  p.  49. 

-  Spirit  of  Laws,  Book  II.  Chap.  1.  Montesquieu  speaks  of  three 
species  of  government,  —  republican,  monarchical,  and  despotic,  —  but 
the  last  two  belong  to  one  class,  both  referring  to  the  rule  of  a  single 
man,  and  distinguished  only  as  to  the  manner  in  which  his  power  is 
exercised.  Thus,  he  says,  "  a  republican  government  is  that  in  which 
the  body,  or  only  a  part  of  the  people,  is  possessed  of  the  supreme 
power;  monarchy,  that  in  which  a  single  person  governs  by  fixed 
and  established  laws ;  a  despotic  government,  that  in  which  a  siugle 
person  directs  everything  by  his  own  will  and  caprice."  "When  the 
body  of  the  people  is  possessed  of  the  supreme  power,  it  is  called  a 
democracy.  When  the  supreme  power  is  lodged  in  the  hands  of  a 
part  of  the  people,  it  is  then  an  aristocracy."     (Book  II.  Chap.  2.) 


374  THE  NATURE   OF  THE   STATE 

other  forms.^  It  will  be  found,  however,  that  this 
position  is  based  more  on  the  practical  administra- 
tive conditions  that  control  the  conduct  of  public 
affairs,  than  upon  structural  peculiarities  of  govern- 
ment. This  suggests  the  remark,  that  from  the 
standpoint  of  the  "  art  of  government,"  distinctions 
between  governmental  forms  may  undoubtedly  have 
a  comparatively  different  importance  from  that  which 
they  have  when  viewed  as  elements  in  formal  descrip- 
tive politics. 

The  classification  of  Gareis,  as  outlined  in  his 
Allgememes  StaatsrecJit,  is  one  of  the  latest  attempts 
at  a  formal  division  of  governments,  and,  to  our 
mind,  though  not  completely  satisfactory,  one  of  the 
best.  The  character  of  the  chief  executive  is  made 
the  basic  principle  of  distinction,  and,  in  accordance 
therewith,  governments  are  divided  into  four  classes, 
as  follows :  — 

(1)  Those  in  which  the  chief  executive  organ  is  a 
non-responsible  single  person  or  monarch;  and 
he  may  be  — 

{a)  without  constitutional  limitations  upon  his 
power;  i.e.  absolute  or  autocratic,  as 
is  the  case  in  Russia,  Turkey,  Persia, 
etc.     Or  — 

(6)  constitutionally  limited  ;  as,  for  examples, 
the  other  monarchies  of  Europe. 

1  Politik,  pp.  3  et  seq. 


GOVERNMENTS:    THEIR   CLASSIFICATION  375 

(2)  Those  in  which  the  chief  executive  organ  is  a 

responsible  single  person ;  as,  for  example,  the 
President  of  the  United  States  or  of  France. 
Responsibility  is  here  used,  of  course,  not  in 
the  sense  of  parliamentary  responsibility,  but 
of  amenability  to  law  for  all  acts  done  in  a 
private  capacity,  or  in  excess  of  delegated 
authority. 

(3)  Those  in  which  there  is  a  non-responsible  plural 

executive  ;  as,  for  example,  the  Roman  collegi- 
ate, or  the  joint  regency  in  Japan  before 
1867.     This  is  a  comparatively  rare  type. 

(4)  Those   in   which    there   is   a   responsible  plural 

executive;  as,  for  examples,  the  French  Direc- 
tory, the  Roman  consuls,  and  the  Swiss  Fed- 
eral Council.^ 

A  republic  is  defined  by  Gareis  as  that  form  of 
control  in  which  all  executive  officers  are  personally 
and  legally  responsible  for  the  manner  in  which  their 
duties  are  performed.^  And  this  appears  to  us  much 
more  nearly  in  accord  with  common  usage,  than  that 
which  defines  it  as  simply  the  rule  of  a  number  as 
opposed  to  the  rule  of  one,  or  monarchy.  As  a 
descriptive  term,  it  may  be  applied  to  divisions  (2) 
and  (4)  of  the  above  classification.  The  word 
"  Democracy,"  also,  according  to  this  nomenclature,  is 
not  used  as  defining  a  distinct  type,  but,  as  we  have 

1  Allgemeines  Staatsrecht,  pp.  37  et  seq.  (Marquardsen,  Handbuch 
des  OeffentI Ichen  liechts.) 

2  Idem,  p.  37. 


376  THE   NATURE   OF  THE   STATE 

accepted  it  above,  as  indicative  of  all  governments 
in  which  the  popular  element  is  more  or  less  pro- 
nounced. In  this  sense  it  is  largely  assimilated  to 
that  of  Popular  Government.  Representative  Gov- 
ernment, likewise,  does  not  constitute  a  type  of 
itself.  All  governments,  monarchical  or  democratic, 
absolute  or  limited,  are  actually  representative  in 
character.  The  distinctions  lie  in  the  singular  or 
plural  number  of  the  representatives,  and  in  their 
amenability  to  popular  influence  and  legal  control. 

As  intimated  above,  the  classification  of  Gareis  is 
not  completely  satisfactory,  in  that  it  necessitates 
the  grouping  together  of  such  dissimilar  types  as  the 
governments  of  Prussia  and  England,  and  the 
French  Directory  of  1795  and  the  present  Swiss 
Republic.  But  such  objections  are  inherent  in  any 
formal  classification  that  has  to  be  based  upon  cer- 
tain selected  features,  to  the  exclusion  of  the  rest. 
The  sole  object  is  to  select  such  features  as  will 
reduce  the  objections  to  a  minimum,  and  this,  it 
seems   to  us,  has  been  done   in   the    above  system. 

Another  recent  classification  of  governments,  and 
an  extremely  valuable  one,  is  that  made  by  Pro- 
fessor Burgess  in  the  work  which  we  have  several 
times  had  occasion  to  cite,  and  the  value  of  which  we 
here  again  take  the  opportunity  of  attesting.  This 
division,  however,  is  determined  by  administrative 
principles  as  well  as  by  structural  peculiarities 
of  government.  As  such,  it  varies  widely  from 
any  of  the  other  systems  which  we  have  considered. 
It  is  based  upon  four  canons  of  distinction,  which 


GOVERNMENTS:    THEIR   CLASSIFICATION  377 

are,  respectively:  (1)  the  identity  or  non-identity  of 
State  and  Government  (Professor  Burgess'  distinction 
between  State  and  Government  will  be  remembered) ; 
(2)  the  consolidation  or  distribution  of  governmental 
power;  (3)  the  tenure  of  office  of  public  officials;  and 
(4)  the  relation  of  the  legislative  to  the  executive ; 
that  is,  whether  the  government  be  presidential 
or  parliamentary.  According  to  this,  the  United 
States  government  is  a  democratic,  limited,  repre- 
sentative, federal,  coordinate,  elective,  presidential 
government ;  that  of  England  is  immediate,  at  once 
democratic,  aristocratic,  and  monarchic,  centralized, 
coordinate,  partly  elective,  partly  hereditary,  and 
parliamentary. 

Without  detracting  at  all  from  the  extreme  value 
of  this  analysis,  it  may  be  pointed  out  that  it  is  a 
description  rather  than  a  classification  of  govern- 
ments, and  indeed  this  was  probably  its  primary 
purpose.  Based  upon  the  distinctions  therein  ex- 
plained, however,  not  only  is  the  analysis  of  particu- 
lar governmental  forms  greatly  facilitated,  but  a 
great  variety  of  cross-classifications  of  governments 
is  rendered  possible,  by  selecting  in  turn,  as  the  prin- 
ciple of  division,  each  of  such  distinctions. 

We  need  to  lengthen  but  little  more  this  chapter, 
for  there  must  already  have  been  made  apparent 
the  principles  that  we  have  had  in  mind  to  for- 
mulate. We  close  the  subject,  therefore,  by  merely 
adverting  to  three  or  four  of  the  better-kno^vn 
classifications  of  governments  suggested  by  modern 
publicists. 


378  THE  NATURE  OF  THE  STATE 

The  fourth  form,  "  Ideocracy,"  with  its  perverted 
type,  "  Idolocracy,"  added  by  Bhmtschli  ^  to  the 
Aristotelian  trinity,  as  illustrating  that  type  in 
which  the  supreme  ruler  is  conceived  to  be  God  or 
some  superhuman  spirit  or  idea,  is  evidently  unscien- 
tific. As  Burgess  says,^  it  is  of  no  real  significance, 
from  this  standpoint,  from  whom  the  actual  rulers 
are  supposed  to  have  derived  their  powers.  Even 
conceiving  the  State  to  be  under  the  dominion  of  a 
Deity,  the  question  yet  remains  to  be  answered, 
who,  in  the  last  resort,  are  to  interpret  such  Deity's 
will?  Has  this  power  been  delegated  to  the  one, 
the  few,  or  the  many,  and  this  brings  us  back  to 
the  three  original  forms. 

The  classification  of  governments  by  Welcker  into 
Despotisms,  Theocracies,  and  Legal-States,  according 
to  whether  the  controlling  principle  of  rule  be  egoistic, 
theological,  or  rational,  is  equally  unsatisfactory,  as 
an  attempt  to  apply  it  to  modern  types  will  suffi- 
ciently demonstrate.  The  principle  upon  which 
it  is  based  is  one  that  cannot  be  definitely  deter- 
mined, concerning  which  no  two  people  can  be  made 
entirely  to  agree,  and  which  is  liable  to  continual 
fluctuation. 

The  division  of  governments  into  Patriarchal, 
Theocratic,  Despotic,  Classic,  Feudal,  and  Constitu- 
tional, accepted  by  Von  Mohl,  is  likewise  hopelessly 
confused,  based,  as  it  is,  partly  upon  historical  forms, 
partly  upon  principles  of  responsibility  of   those  in 

1  Theory  of  the  State,  trans.,  2d  ed.,  Bk.  VI.  Cliap.  I. 

2  Political  Science  and  Constitutional  Laiv,  Vol.  I.  p.  75. 


GOVERNMENTS:    THEIR   CLASSIFICATION  379 

power,  and  partly  upon  questions  of   legitimacy  of 
political  control.^ 

The  classification  of  Waitz^  is  into  Republics, 
Theocracies,  and  Kingdoms,  according  to  whether 
the  people  themselves  retain  the  control  of  govern- 
ment, or  consider  the  ultimate  authority  to  rest  in 
God,  or  whether  public  authority  has  been  finally 
and  completely  given  into  the  hands  of  a  single  indi- 
vidual. For  a  criticism  of  this  system,  further  than 
the  principles  which  we  have  above  stated  will  at 
once  make  manifest,  reference  may  be  had  to  Blunt- 
schli's  work.^  In  the  same  book  may  be  found  a 
mention  of  the  division  of  F.  Rohmer,  by  which 
States  are  classified  as  Idolstaaten,  Individualstaaten, 
Rassestaaten,  or  Formenstaaten,  according  to  whether 
their  political  spirit  be  radical,  liberal,  conservative, 
or  absolutist,  respectively.* 

1  Cf.  Burgess,  op.  cit.  pp.  73-4. 

2  "  Ueber  die  Unterscheidung  der  Staatsformen,"  coutained  iu  his 
Grundzuge  der  Politik,  pp.  107  et  seq. 

*  Theory  of  the  State,  trans.,  2d  ed.,  p.  344. 

*  Idem,  p.  340  (note). 


CHAPTER  XIV 

EECAPITULATION  :     PRESENT     POLITICAL     CHARACTER- 
ISTICS   AND    TENDENCIES 

We  have  now  practically  completed  the  task 
assigned  ourselves.  Before  laying  down  the  pen, 
however,  we  may  perhaps  be  justified  in  summing 
up  the  main  results  that  have  been  reached,  and  in 
considering  briefly  the  characteristic  features  of  the 
State  as  at  present  manifested  in  the  civilized  world. 

As  regards  the  first  point ;  namely,  the  focussing 
of  the  various  theoretical  conclusions  that  we  have 
reached,  this  may  be  best  performed  by  recapitulat- 
ing in  a  very  general  way  the  historical  steps  by 
which  the  true  conception  of  the  State  has  been 
evolved.  By  the  contrast  thus  afforded  of  the  modern 
view  with  its  antecedent  and  less  perfect  types,  we 
shall  be  enabled  to  bring  the  State's  essential  elements 
into  the  clearest  light. 

An  intimate  relation  has  ever  existed  between 
abstract  political  theories,  and  the  particular  objec- 
tive conditions  which  have  given  rise  to  them,  and 
which  they  have  been  called  upon  to  explain.  Thus 
political  systems  though  avowedly  dealing  with  essen- 
tials and  not  with  particular  appearances,  have  yet,  as 
their  history  shows,  ever  been  intimately  associated 

S80 


POLITICAL  CHARACTERISTICS  AND  TENDENCIES      381 

with,  and  limited  by,  particular  conditions  of  fact. 
Thus  it  is  that  the  variety  and  complexity  of  modern 
conditions  afford  us,  if  not  new  truths  (for  that  is 
impossible)  at  least  an  abundance  of  suggestions  that 
lead,  on  the  one  hand,  to  the  discovery  of  deficiencies 
in  former  theories,  and,  on  the  other,  to  the  ascertain- 
ment of  elements  which,  but  for  these  suggestions, 
would  in  all  probability  never  be  evolved  by  the 
reason  of  man  moving  unassisted  in  the  realms  of 
pure  speculative  thought. 

At  the  same  time,  this  very  fact  intimates  to  us 
the  possibility,  nay  the  probability,  that  any  system 
that  we  may  evolve,  will  prove  inadequate  when 
called  upon  in  the  future  to  explain  political  condi- 
tions, the  character  of  which  our  limited  powers  of 
prevision  render  it  impossible  for  us  to  foresee.  All 
that  we  may  hope  for,  therefore,  in  this  attempt, 
is  that  this  inadequacy  will  arise  rather  from  an 
insufficient  elaboration  of  the  principles  which  we 
have  established,  than  from  defects  in  our  pre- 
mises or  errors  in  our  reasoning;  that  the  funda- 
mental truths  upon  which  our  system  is  based,  will 
not  be  seriously  disturbed,  and  that  the  altera- 
tions that  may  be  needed,  will  therefore  be  in 
the  collateral  deductions  that  have  been  made,  and 
along  the  line  of  further  elaboration,  rather  than 
of  rectification. 

The  tracing  of  the  evolution  of  the  Staatsidee, 
together  with  the  treatment  of  the  modern  State 
as  at  present  manifested  to  us,  will  naturally  tempt 
us  to  consider  some  of  the  tendencies  of  political 


382  THE   NATUKE   OF  THE  STATE 

development  that  appear  in  present  life,  and  to  a 
discussion  of  the  essential  problems  to  which  they 
will  necessarily  give  rise.  Any  treatment  of  these 
latter  topics,  however,  that  would  be  at  all  adequate 
from  a  scientific  point  of  view  would  necessitate  a 
consideration  of  the  entire  dynamites  of  State  life, 
which  in  turn  would  need  to  be  preceded  by  a  de- 
scriptive account  of  political  institutions,  or  its  stati- 
cal elements.  It  is  thus  seen  that  a  complete  system 
of  Political  Science  includes  three  main  divisions : 
first,  the  determination  of  fundamental  philosophical 
principles ;  second,  the  description  of  political  insti- 
tutions, or  governmental  organizations  considered  as 
at  rest ;  and  third,  the  determination  of  the  laws  of 
political  life  and  development,  the  motives  that  give 
rise  to  political  action,  the  conditions  that  occa- 
sion particular  political  manifestations,  the  circum- 
stances under  which  certain  forces  are  applicable, 
either  for  the  good  or  for  the  bad,  etc.,  etc. 

It  would  appear  that,  logically,  these  three  fields 
should  be  covered  in  the  order  stated.  The  ante- 
cedent determination  of  fundamental  principles  and 
essential  characteristics  is  demanded  for  a  proper 
description  of  existing  types,  and  this  description 
is,  in  turn,  necessary  to  a  consideration  of  these 
types  as  in  active  operation.  While  this  is  the 
logical  sequence,  historically  this  order  has  been 
departed  from,  and  necessarily  so.  Not  until  a  suf- 
ficient number  of  facts  have  been  observed,  and  the 
sequences  of  cause  and  effect  in  political  life  re- 
marked, is  the  formation  of  adequate  philosophical 


POLITICAL  CHARACTERISTICS  AND  TENDENCIES      383 

conceptions  possible.  When  formed,  however,  these 
conceptions  serve  to  explain  and  harmonize  the  facts 
that  have  before  appeared  confused  and  contradic- 
tory. This  same  contradiction  between  the  logical 
and  historical  order  of  evolution  is  observable  as  well 
in  fields  of  knowledge  other  than  Political  Science. 
Thus  in  Ethics,  the  practical  recognition  and  defi- 
nition of  the  moral  attributes  of  man  have  preceded 
the  formation  of  the  abstract  idea  of  his  moral  per- 
sonality upon  which  such  attributes  are  logically 
founded.  The  same  is  observable  in  the  history  of 
Jurisprudence,  the  establishment  of  legal  rights  and 
duties  long  antedating  the  conception  of  a  legal 
personality  which  is  necessarily  the  subject  of  these 
rights  and  duties.  Thus  also,  finally.  Sociology,  in 
its  strictest  sense  as  that  special  differentiated  branch 
of  psychology  that  attempts  to  determine  the  fun- 
damental psychic  elements  upon  which  all  the 
special  social  sciences  are  founded,  is  of  but  recent 
development.^ 

Up  to  this  point  our  inquiries  have  been  strictly 
confined  to  the  philosophy  of  our  subject.  In  this, 
the  last  chapter,  however,  the  boundary  line  will 
be  crossed,  and,  in  addition  to  its  recapitulatory 
purpose,  the  aim  will  be  to  suggest,  by  what  will 
be  scarcely  more  than  a  bare  enumeration,  the  more 
important   topics   that   will   necessarily  have  to  be 

1  Cf .  F.  H.  Gifldings,  Theory  of  Sociology,  Suppl.  Annals  of  the 
Am.  Acad.  Pol.  and  Soc.  Sci,  July,  1891,  and  II.  II.  Powers,  Ter- 
minology and  the  Sociological  Conference,  Annals  Am.  Acad.,  Vol.  V. 
p.  705. 


384  THE  NATUEE   OF  THE   STATE 

treated  by  any  one  covering  the  last  of  the  other 
two  fields,  —  especially  if  such  a  work  would  be 
made  to  have  a  particular  bearing  upon  present 
American  conditions.  The  field  of  Descriptive 
Politics  does  not  lend  itself  to  a  complete  treat- 
ment in  a  single  work.  For  its  adequate  cultiva- 
tion the  monographic  method  is  demanded.  The 
domain  of  Politics  properly  so  called  (Politik),  how- 
ever, resembles  that  of  Political  Philosophy,  in  adapt- 
ing itself  to  more  comprehensive  treatment.  There 
is,  however,  this  difference.  A  correct  system  of 
political  philosophy  should  be  of  almost  equal  value 
to  all  peoples,  while  systems  of  practical  politics, 
because  of  their  empiric  character,  vary  according  to 
the  particular  political  conditions  to  which  they  are 
made  applicable. 

It  is  this  fact  that  renders  the  political  systems 
that  have  been  so  elaborately  developed  by  Conti- 
nental publicists  of  so  little  value  to  the  American 
people.  A  satisfactory  work  on  the  Art  of  Govern- 
ment written  from  the  purely  American  standpoint, 
and  with  special  reference  to  the  American  condi- 
tions, remains  yet  to  be  written.  Works  such  as 
those  of  De  Tocqueville,  Bryce,  Burgess,  Woodrow 
Wilson,  and  others,  abound  with  valuable  sugges- 
tions ;  but  a  single  comprehensive  study  of  Democ- 
racy as  it  exists  among  us,  —  its  peculiar  burdens, 
its  problems,  its  administrative  merits  and  defects 
when  applied  to  our  federal  system,  to  our  systems 
of  local  government,  to  our  vast  territorial  extent, 
our  inherited  political  instincts,  our  industrial,  social, 


POLITICAL  CHAKACTERISTICS  AND  TENDENCIES      385 

moral,  and  intellectual  conditions,  —  such  a  work  yet 
remains  to  be  prepared. 

It  is  only  as  indicating  some  of  the  problems  that 
such  a  needed  work  would  necessarily  have  to  con- 
sider that  we  have  written  that  portion  of  this 
chapter  which  has  to  deal  with  present  political  con- 
ditions and  tendencies. 

From  what  has  been  said  above,  it  will  be  seen 
that  the  matters  to  be  discussed  below,  fall  under 
three  heads.  First,  a  summary  of  the  steps  in  the 
evolution  of  the  idea  of  the  State;  secondly,  the 
description  or  rather  enumeration  of  present  polit- 
ical conditions ;  and,  thirdly,  a  statement  of  political 
tendencies  and  of  the  various  problems  to  which 
they  are  likely  to  give  rise.  We  shall  speak  of 
these  in  this  order. 

The  Development  of  the  Abstract  Idea  of  the 
State.  —  In  this  section  we  shall  take  up  seriatim  the 
chief  attributes  of  the  State  as  they  are  at  present 
recognized,  and,  by  noticing  the  historical  steps  by 
which  their  recognition  has  been  obtained,  contrast 
the  present  Staatsidee  with  its  former  types. 

First  to  be  noticed  is  the  complete  separation  of 
temporal  and  spiritual,  civic  and  ecclesiastical, 
powers  which  is  characteristic  of  the  present  day. 
The  State,  while  not  considered  as  immoral,  is  now 
held  to  be  essentially  non-moral,  and  its  activities 
and  interests  viewed  as  wholly  independent  of  those 
matters  that  particularly  pertain  to  the  spiritual  life 
of  men.     So  long  as  theological  beliefs  have  to  do 


386  THE  NATURE   OF  THE   STATE 

only  with  the  inward  state  of  man,  the  temporal 
power  is  not  and  cannot  be  directly  concerned, 
though  it  may  profit  by  the  morality  that  it  creates. 
Nevertheless,  the  religious  element  enters,  however, 
and  must  necessarily  enter  as  a  practical  element 
in  the  life  and  activity  of  the  State.  Upon  religion 
is  largely  founded  the  morality  upon  which  the  ex- 
istence and  health  of  the  social  life  depends ;  and,  as 
long  as  religious  thought  remains  in  anything  like 
its  present  form,  there  will  be  the  necessity  for  the 
State  to  recognize  its  existence.  In  any  State,  also, 
however  liberal  its  policy,  there  must  arise,  on  occa- 
sions, the  necessity  to  forbid  the  practice  of  religious 
beliefs  the  instant  that  they  conflict  with  its  own 
welfare,  either  by  way  of  inculcating  habits  of  civil 
disobedience,  or  by  undermining  those  moral  or  social 
principles  upon  which  its  own  stability  depends.  This 
is  a  necessity  based  upon  its  essential  function  as 
sustainer  of  positive  law  and  preserver  of  autono- 
mous existence.  Thus,  for  instance,  granting  that 
the  practice  of  Mormonism,  so  far  as  its  polygamous 
features  are  concerned,  is  subversive  of  public  moral- 
ity, the  rational  duty  of  the  State  (its  power  is  of 
course  not  questioned)  to  coercively  interfere,  is  un- 
doubted. In  like  manner  no  State  can  consistently 
recognize  an  allegiance  of  its  subjects  to  an  ecclesi- 
astical head,  foreign  or  domestic,  that  extends  to 
more  than  a  spiritual  and  dogmatic  obedience. 

The  steps  by  which  the  purely  secular  conception 
of  the  political  power  has  been  reached,  were  but 
slowly  taken.     In  true  Comtist  sequence,  the  evolu- 


POLITICAL   CHARACTERISTICS   AND   TENDENCIES      387 

tion  of  the  idea  of  the  State  has  developed  from  the 
theological  to  the  metaphysical,  and  thence  to  the 
positive  stage.  We  have  already  partially  traced 
this  progress  in  connection  with  the  histories  of  the 
Divine  and  Contract  theories. 

The  first  twilight  of  history  discovers  an  almost 
complete  identification  of  matters  religious  and 
civil.  Law  is  conceived  as  directly  embodying 
divine  orders,  and  political  rulers  considered,  if 
not  as  themselves  divine  beings,  as  exercising  an 
authority  divinely  delegated  to  them.  This  is  the 
universal  condition  found  existing  in  the  earliest 
times,  wherever  we  look.  While,  however,  this  con- 
ception persisted  among  the  Oriental  nations,  crys- 
tallized as  their  thoughts  and  instructions  became, 
in  the  unleavened  cake  of  custom,  in  the  Greek  and 
Eoman  branches  of  the  Aryan  race  the  next  or  meta- 
physical stage  was  soon  reached. 

In  the  Grecian  thought,  as  we  have  seen,  the 
divine  element,  though  not  eliminated,  was  pushed 
back  to  the  position  of  a  causa  reniota,  and  nature 
{natura  naturans)  erected  as  the  proximate  or  efficient 
cause  of  the  State  and  of  law.  This  was  the  essen- 
tial form  in  which  political  theory  appears  in  the 
writings  of  Aristotle  and  Plato. ^  In  the  writings  of 
the  Stoics,  the  metaphysical  conception  of  Nature 
becomes  still  more  pronounced,  and  it  was  the 
stoic  view  that  was  borrowed  and  incorporated  by 
the  Eomans  in  their  wonderful  system  of  jurispru- 

1  In  so  far  as  Plato  speaks  of  a  directly  divine  character  of  the  State, 
he  has  reference  to  his  ideally  perfect,  rather  than  the  actual,  State. 


388  THE   NATUKE   OF  THE   STATE 

dence.  Of  the  modifications  of  the  current  idea  of 
Natural  Law  introduced  by  the  rise  of  Christianity, 
and  its  later  fate  at  the  hands  of  the  Schoolmen, 
we  have  already  spoken. 

The  idea  of  Natural  Law  was  not  eliminated  from 
English  jurisprudence  until  the  time  of  Bentham  a,nd 
Austin.  Upon  the  Continent  it  still  persists  to  a 
very  considerable  degree.  In  this  respect,  therefore, 
the  political  j)hilosophy  of  England,  and,  following 
her,  that  of  America,  is  in  advance  of  that  of  the 
Continent.  For  it  is  only  until  this  last  metaphysical 
element  of  Natural  Law  is  eliminated,  that  the  com- 
pletely secular  and  scientific  conception  of  the  State 
is  made  possible. 

Intimately  bound  up  with  the  conception  of  the 
State  as  a  completely  secular  and  positive  organiza- 
tion, is  its  character  as  a  sovereign  body.  With 
the  disappearance  of  the  ideas  of  natural  and 
divine  law  vanished  the  alleged  subjection  of  the 
political  power  to  any  will  but  that  of  its  own. 

Logically,  there  disappeared  at  the  same  time 
all  possibility  of  legal  control  from  within.  As  a 
matter  of  fact,  however,  the  legally  absolute  char- 
acter of  the  State,  as  regards  its  control  over  its 
own  citizens,  remained  stoutly  contested  long  after 
its  completely  autonomous  position  among  other 
nations  was  recognized.  The  refusal  to  recognize 
the  independent  character  of  the  State  in  the 
former  respect  was  based  upon  two  errors :  first, 
the  assumption   of   certain  inalienable,  imprescript- 


POLITICAL   CHARACTERISTICS  AND   TENDENCIES      389 

ible,  inherent  "rights  of  man"  which  the  State, 
whatever  its  power  or  governmental  organization, 
might  not  touch ;  and,  .secondly,  the  allegation 
that  law  might  be  created  directly  by  the  people 
through  their  own  customary  habit,  and  hence 
independently  of  the  political  power. 

In  the  actual  development  and  practical  appli- 
cation of  law,  the  Romans  of  the  Republican 
Period  founded  its  validity  upon  the  will  of  the 
people  and  defined  the  State  as  a  res  piiblica,  and 
thus  reduced  political  life  to  a  secular  basis.  They 
distinguished  law  and  morality  and  gave  to  the 
State  a  purely  legal  organization.  But  the  philo- 
sophical principles  that  necessarily  lay  at  the  base 
of  such  a  practice  as  this,  they  never  developed, 
engrossed  as  they  were  in  the  organization  and 
administration  of  their  vast  conquests.-^ 

The  rise  of  the  Christian  Church  to  almost  com- 
plete dominance  in  Europe,  again  plunged  juris- 
prudence into  confusion,  so  far  as  concerned  the 
reuniting  of  political  and  theological  conceptions. 
But  what  made  this  confusion  "worse  confounded" 
was  the  destruction  of  that  distinction  between 
public    and   private    law   which    the    Romans   had 

^  Thus  says  Bluntschli  (Gesammelie  kleine  Scliriften:  Der  RecJits- 
begrijf,  Vol.  I.  p.  21)  :  "  The  Romans  had  a  wonderfully  fine  sense  of 
discrimination  as  to  what  should  be  commanded  by  law,  and  what 
should  be  left  to  the  free  will  of  the  individual.  .  .  .  But  in  spite  of 
that,  they  never  obtained  a  clear  scientific  conception  of  the  principle 
of  this  distinction.  Even  in  the  later  classical  jurisprudence  one  looks 
in  vain  for  a  fundamental  rule  of  division.  To  the  question,  *  What 
is  Legality  and  what  Morality?'  they  gave  the  correct  answer  in 
actual  practice,  but  not  in  theory.     Uli^ian,  for  example,  one  of  the 


390  THE   NATURE   OF  THE   STATE 

done  so  much  to  create,  and  the  introduction  of 
the  element  of  customary  law,  as  positive  law 
proprio  vigore,  of  which  we  have  spoken  above. 

The  bringing  in  of  these  last  two  elements  of  con- 
fusion was  of  course  due  to  the  Germanic  tribes,  the 
characteristic  of  whose  j^olitical  systems  and  juridical 
thought  was  the  enhancement  of  private  rights  at  the 
expense  of  public  authority ;  and  whose  ideal  was  per- 
sonal freedom,  rather  than  universal  or  absolute  ruler- 
ship.  Thus,  while  in  the  Koman  Civil  Law  the  State 
had  been  viewed  as  the  creator  of  law,  in  Germanic 
thought,  it  was  viewed  as  enforcing  law  that  had 
been  already  created  by  the  customary  habit  of  the 
people. 

At  the  time  that  the  relation  between  the  State 
and  Law  began  to  be  carefully  considered  in  the 
Middle  Ages,  this  Germanic  idea  of  the  source  of 
private  law  was  already  widespread,  and  was  made 
to  oppose  the  Roman  principle  that  quiquid  principi 
placuit  legis  habet  vigorem.  It  would  lead  us  into 
too  great  detail  to  attempt  to  show  the  manner  in 
which  the  mediaeval  and  early  modern  writers  en- 
deavored to  harmonize  these  opposing  principles; 
how  they  attempted  to  distinguish  between  positive 
and  natural  laws,  and  to  separate  these,  in  turn,  into 


clearest  and  keenest  of  Roman  jurists,  declared  jurisprudence  to  be 
'  the  knowledge  of  things  human  and  divine,  and  the  science  of  right 
and  wrong,'  and  declared  the  highest  rule  of  law  to  be,  'to  live  hon- 
estly, not  to  injure  others,  and  to  give  to  each  one  his  own.'  In 
truth,  a  Greek,  who  did  not  understand  the  distinction  between  law 
iiiid  morality,  might  speak  thus,  but  for  a  Roman,  this  declaration 
was  untrue." 


POLITICAL   CHARACTERISTICS  AND  TENDENCIES      391 

classes  according  to  whether  objectively  or  subjec- 
tively considered ;  how  they  sought  to  determine 
whether  the  validity  of  law  is  derived  from  the  will 
of  the  legislator,  or  from  the  '^reasonableness'"  of  the 
principle  enunciated,  i.e.  its  conformity  to  general  doc- 
trines of  equity  and  nature ;  and  how  to  distinguish 
between  the  applicability  of  laws  to  the  ruling  sov- 
ereign. In  a  hundred  ways  such  questions  were 
debated,  as,  whether  the  monarch  was  bound  by  law 
both  quod  vim  coactivam  and  quod  vim  directivam  or 
only  the  latter ;  whether  kings,  though  not  bound  by 
ordinary  laws,  might  be  bound  by  their  own  contracts 
or  constitutional  law ;  what  conclusions  were  to  be 
drawn  from  the  distinction  between  tyrants  quoad 
titulum  and  quoad  exercitium.  These,  and  countless 
other  controversies,  arose,  all  connected  with  the 
attempt  to  harmonize  logically  contradictory  propo- 
sitions, and  to  practically  realize  the  sovereign  inde- 
pendence of  the  State,  and,  at  the  same  time,  to  pre- 
serve inviolate  and  inviolable  certain  rights  of  the 
individual.  As  one  writer  has  expressed  it,  it  was 
the  old  insoluble  problem  of  trying  to  oppose  an  im- 
penetrable body  to  an  irresistible  force. 

Practically,  however,  the  logic  of  events  gained 
the  victory  for  the  irresistible  force.  The  rise 
of  monarchies  in  the  place  of  semi-independent 
feudatories  was  soon  reflected  in  the  writingrs  of 
Machiavelli  and  Bodin.  Machiavelli  first  took  the 
emphatic  position,  that  law,  whether  civil,  natural, 
or  divine,  is  not  binding  even  upon  the  ruler's  con- 
science, but  is  subordinated  to  that  higher  law  whose 


392  THE   NATURE  OF  THE   STATE 

principle  is  the  good  of  the  State,  however  that  good 
is  to  be  obtained,  whether  by  lying  or  knavery  or 
deceit  of  any  kind ;  and  Bodin,  who,  as  we  have 
seen,  first  stated  the  doctrine  of  Sovereignty  in  much 
its  modern  form.  In  vain  did  the  anti-monarchists 
attempt  to  limit  the  royal  power  by  distinguishing  be- 
tween majestas  realis  and  majestas  personalis.  The 
distinctions  between  tyrants  quoad  titulum  and  quoad 
exercitium  likewise  lost  ground,  and  in  the  system  of 
Grotius  we  see  the  tendency  to  view  de  facto  sover- 
eigns as  necessarily  de  jure  as  well,  a  tendency  that 
was  completely  realized  in  the  work  of  Spinoza. 
Hobbes  touched  the  apex  of  absolutism  when  he 
declared  that  no  natural  law  or  rights  can  persist 
after  the  origin  of  political  society.  Pufendorf 
attacked  this  doctrine,  but  even  he  had  to  yield  to 
the  extent  of  admitting  that  such  natural  law  could 
create  only  an  ohligatio  imperfecta,  —  an  obligation 
that  is  in  fact,  of  course,  no  obligation  at  all. 

Only  in  the  conception  of  law  as  created  by  the 
people  themselves  through  custom,  did  there  persist 
an  element  to  detract  from  the  completely  sovereign 
character  of  the  State.  This  conception,  as  we 
know,  is  still  widely  held  by  German  publicists,  and, 
though  not  admitted  by  them,  does  necessarily,  by 
the  assertion  of  two  sources  of  legal  command, — one 
of  them  independent  of  the  State,  —  logically  detract 
from  the  full  competence  [allseitigkeit  der  competenz) 
of  the  State. 

The  imposition  of  constitutional  limitations  upon 
governments  that  has  characterized  the  present  cen- 


POLITICAL  CHARACTERISTICS  AND  TENDENCIES      393 

tury,  has  had  for  its  object,  not  the  establishment  of  a 
control  over  the  State  from  without,  but  a  division  and 
regulation  of  powers  from  within ;  it  is,  as  so  often  re- 
peated, a  limitation  of  actual  governmental  powers, 
not  of  the  competence  of  the  State  itself.  Thus  at  last 
has  been  assumed  the  only  true  position, — one  that 
protects  the  citizen  against  arbitrary  rule  without 
attacking  the  supremacy  of  the  State,  and  renders  gov- 
ernmental agents  responsible  for  the  manner  in  which 
their  authority  is  exercised,  without  denying  the 
legally  absolute  character  of  political  Sovereignty. 

Finally,  in  addition  to  its  secular,  positive,  inde- 
pendent, and  absolute  qualities,  there  is  the  attri- 
bute of  Personality  that  especially  characterizes  the 
modern  conception  of  the  State. 

The  development  of  this  idea  in  its  completeness, 
was  the  latest  attained,  not  only  because  the  most 
abstract,  but  because  dependent  for  its  full  recogni- 
tion upon  the  acceptance  of  the  State  as  entirely 
sovereign.  At  the  same  time,  adumbrations  and  im- 
perfect forms  of  this  view  are  met  with  from  the  very 
earliest  times.  Hence,  to  trace  its  development 
would  require  that  we  should  again  traverse  the 
entire  history  of  political  philosophy.  We  can  there- 
fore permit  ourselves  to  dwell  no  more  fully  upon  this 
than  to  indicate  how  and  why  it  was  that  the  correct 
view  was  not  earlier  developed.  This  we  may  more 
clearly  do  by  observing  that  the  idea  of  the  personality 
of  the  body  politic  has  been  held  in  three  forms,  the 
third  and  last  of  which  is  the  only  true  one. 


394  THE   NATURE   OF  THE   STATE 

First,  political  personality  has  been  identified  with 
human  personality,  and  the  State  viewed,  as  it  were, 
as  an  enormous  man,  subject,  as  is  its  alleged  proto- 
type, to  laws  of  life,  development,  decay,  and  death, 
to  sickness  and  health ;  and,  like  him,  resting  under 
moral  obligations.  This,  which  we  may  call  the  an- 
thropomorphic view,  is  obviously  connected  with  that 
theory  which  sees  in  the  State  a  natural  organism.  In 
this  connection  may  be  mentioned  that  still  crasser 
form  of  this  view  in  which  the  conception  is  so  purely 
mechanical  as  to  render  impossible  the  idea  of  a 
personality  of  any  sort.  Such,  for  example,  is  that 
presented  by  Hobbes  when  he  says  in  the  introduc- 
tion to  his  Leviathan :  "  For  by  art  is  created 
that  great  '  Leviathan '  called  a  '  Commonwealth,' 
or  '  State,'  in  Latin  Civitas,  which  is  but  an  arti- 
ficial man ;  though  of  greater  stature  and  strength 
than  the  natural,  for  whose  protection  and  defence 
it  was  intended,  and  in  which  the  '  sovereignty '  is 
an  artificial  '  soul '  as  giving  life  and  motion  to 
the  whole  body ;  the  '  magistrates  '  and  other  '  offi- 
cers '  of  judicature  and  execution,  artificial  '  joints ' ; 

*  reward '  and  '  punishment,'  by  which,  fastened  to  the 
seat  of  the  sovereignty,  every  joint  and  member  is 
moved  to  perform  his  duty,  are  the  '  nerves '  that  do 
the  same  in  the  body  natural ;   the   '  wealth '   and 

*  riches '    of   all   the    particular    members    are    the 

*  strength ' ;  salus  populi,  the  '  people's  safety,'  its 
^  business ' ;  '  counsellors '  by  whom  all  things  need- 
ful  for  it  to   know  are  suggested   unto  it,  are  the 

*  memory '  ;    'equity'  and  Maws,'  an  artificial  M'ca- 


POLITICAL  CHARACTERISTICS  AND  TENDENCIES      395 

son'   and   'will';     'concord,'    'health';     'sedition,' 

*  sickness  ' ;    and    '  civil  war,'  '  death.'     Lastly,    the 

*  pacts'  and  'covenants'  by  which  the  parts  of  this 
body  politic  were  at  first  made,  set  together,  and 
united,  resemble  that  '  fiat,'  or  the  '  let  us  make 
man,'  pronounced  by  God  in  the  creation." 

Secondly,  there  is  that  view  that  properly  separates 
the  idea  of  personality  from  human  individuality, 
but  considers  this  former  attribute  ascribable  to  the 
State  only  in  a  metaphorical  or  fictitious  sense. 

Thirdly,  and  finally,  there  is  the  view  that  gives 
to  the  body  politic  a  personality  in  a  true  and  real 
sense,  such  as  we  have  explained  in  Chapter  VI. 

The  idea  of  the  unity  of  State,  that  its  essence 
consisted  in  a  community  of  thought,  life,  and  in- 
terests, was  a  familiar  one  to  mediaeval  writers. 
Mankmd  was  generally  viewed  as  bound  together 
into  a  single  being,  the  two  phases  of  whose  life 
were  realized  in  the  Church  and  the  Empire  respec- 
tively, and  whose  vital  principle  consisted  in  the 
divine  spirit — a  corpus  mysticum  cujus  caput  est 
Christus.  But  the  idea  of  the  State's  personality 
was  conceived  of  as  true  only  in  a  mystical  or  fic- 
titious sense.  Thus  the  body  politic  was  spoken  of 
as  a  persona  reprcesentata,  or  p)ersona  Jicta,  but 
never  as  a  persona  vera,  that  is,  as  a  subject  really 
capable  of  legal  rights  and  duties.  Such  a  con- 
ception they  could  not  reach  until  they  had  obtained 
the  idea  of  the  State  as  an  abstract  conception,  and 
as  resting  upon  a  psychical  basis.  This  they  could 
not  have  as  long  as  the  confusion  between  State  and 


396  'i'ilE   NATURE   OF   THE   STATE 

Government  remained,  and  the  theory  of  the  con- 
tractual origm  of  the  State  persisted,  which  is,  as 
we  have  seen,  at  bottom  atomistic  and  mechanical. 
Tlius  it  was  that  so  far  as  the  ruler  was  spoken  of  as 
exhibiting  in  his  own  person  the  entire  State,  it  was 
rather  the  dignity  or  majesty  (iviirde,  dignitas)  of  the 
State  that  was  personified,  and  this  only  for  pur- 
poses of  international  intercourse.  Hence,  Althu- 
sius,  who  accepted  the  absolute  Sovereignty  of  the 
State  as  elaborated  by  Bodin  (though  placing  this 
power  in  the  whole  people),  and  who  viewed  the  State 
as  an  organic  body  with  an  individual  life,  yet  identi- 
fies State  and  Government,  and  speaks  of  the  body 
politic  as  a  consociata  muUitudo,  and  as  homines  con- 
juncti,  consociata  et  cohoerentes} 

Characteristics  of  the  Modern  State.  —  Thus  far 
in  this  chapter  we  have  been  considering  the  essen- 
tial points  that  distinguish  the  modern  theory  of  tlie 
State  from  its  earlier  forms.  We  turn  now  to  a 
mention  of  the  characteristics  of  its  modern  govern- 
mental organization  as  contrasted  with  former  types. 

The  political  growth  of  the  present  century  may 
be  practically  summed  up  in  the  one  word,  Democ- 
racy—  the  widening  of  political  privileges.  When 
the  dominion  of  Rome  was  established,  there  was 
apparently  secured  for  the  civilized  world  that  result 
which  it  had  been  the  effort  to  obtain  for  so  many 
centuries ;   namely,   the   establishment   of    a   public 

1  See  Gierke,  Johannes  Althusius  u.  die  Entwicklung  der  naturrecht- 
lichen  Staatstheorien,  p.  1G2. 


POLITICAL  CHAKACTERISTICS  AND  TENDENCIES      397 

control  so  organized  and  so  endowed  with  power 
as  to  provide  a  means  whereby  domestic  peace,  and 
order,  and  freedom  from  external  interference  could 
be  secured  to  the  people.  Deprived,  however,  of 
the  administrative  integration  which  the  principles 
of  local  self-government  and  representation  afford, 
the  centrifugal  political  forces  prevailed,  and  Europe 
relapsed  into  the  disorder  of  the  Middle  Ages.  A 
new  start  had  to  be  made,  and  this  time  under  the 
influence  of  the  Teutonic  races.  Again  the  central- 
ized monarchy  had  to  be  formed.  Not  until  after 
an  interregnum  of  more  than  a  thousand  years, 
however,  was  the  climax  of  autocratic  political 
integration  again  attained.  / 

But  like  its  Roman  imperial  type,  this  develop- 
ment led  to  the  perfection  of  a  governmental  form 
which  gave  to  those  entrusted  with  the  exercise  of 
public  duties  not  only  irresponsibility,  but  indefinite- 
ness  of  competence,  and  hence  opportunity  for  arbi- 
trary, selfish,  and  oppressive  conduct.  Between  the 
governing  and  the  governed  an  unbridged  chasm 
existed,  and  an  apparent  as  well  as  an  actual  con- 
flict of  interests.  The  government  was  considered 
not  so  much  as  an  organ  of  the  State,  as  an  instru- 
ment for  the  advancement  of  the  interests  and  ambi- 
tions of  those  in  whose  hands  its  administration 
chanced  to  be  entrusted.  Such  a  condition  as  this 
could  obviously  persist  only  in  the  absence  of  popu- 
lar enlightenment.  Dating,  therefore,  from  the 
beginning  of  the  sixteenth  century,  there  began  to 
grow  a  force  that   in   the   following   centuries  was 


398  THE   NATURE   OF  THE   STATE 

to  reverse  this  state  of  affairs.  Favored  by  the 
revival  of  learning  and  the  declaration  of  freedom 
of  thought  and  speech,  there  was  born  and  increased 
a  political  self-consciousness  of  the  people,  a  self- 
appreciation  of  their  own  political  power,  a  percep- 
tion of  their  cy»^n  natural  and  reasonable  right  to 
determine  the  manner  in  which  they  should  be 
governed,  and  to  direct  their  own  political  destiny. 
England  protected  herself  from  the  destroying  might 
of  this  power  by  timely  concessions  to  its  demands. 
Unyielding  despotism  precipitated  upon  Europe  the 
revolutionary  period  that  closed  the  eighteenth  cen- 
tury, and  later  gave  rise  to  the  democratic  outbreaks 
of  1830  and  1848,  in  which,  in  almost  all  the  nations 
of  the  Continent,  the  expanding  Peoples  burst  vio- 
lently the  political  shells  that  had  so  long  confined 
them,  and  forced  the  beginning  of  that  period  of 
constitutional  development  that  has  proceeded  unin- 
terruptedly to  the  present  day. 

One  might  think  that  when  once  the  principle 
was  established  and  put  into  practice,  that  govern- 
ment is  but  the  instrument  of  the  State,  and  that 
its  powers  are  to  be  exercised  directly  or  indirectly 
by  the  people  generally  and  in  their  own  behalf  — 
that  then  the  struggle  for  good  government  had 
been  successfully  ended.  But  this  was  not  so. 
Inconsistent  as  it  may  seem,  it  soon  became  evident 
that  the  people  needed  to  be  protected  almost  as 
much  against  themselves  and  their  own  representa- 
tives as  against  irresponsible  rulers ;  that  though 
selected   by   and   responsible   to    the    people,   it    is 


POLITICAL  CHARACTERISTICS   AND  TENDENCIES      399 

not  safe  to  entrust  to  any  one  official  or  body  of 
officials  the  supreme  power  that  must  necessarily 
be  given  to  the  government.  Finally,  that  the 
people,  even  when  acting  in  their  most  direct  man- 
ner, cannot  always  be  trusted  to  act  wisely  and 
according  to  their  own  best  interests ;  that  pas- 
sions and  prejudices  of  the  moment  will  urge 
an  electorate  or  assembly  to  measures  destructive 
as  well  to  the  welfare  of  the  State  as  to  its 
stability,  and  that  at  times  the  despotism  of  the 
multitude  can  far  exceed  in  severity  that  possible 
of  exercise  by  the  most  autocratic  of  monarchs. 

To  correct  these  tendencies  there  became  necessary 
the  introduction  of  the  so-called  system  of  "  checks 
and  balances,"  a  system  that  constitutes  an  essen- 
tial element  in  all  modern  constitutional  govern- 
ments. According  to  this  principle,  the  several 
legislative,  executive,  and  judicial  functions  are 
distributed  among  distinct  organs,  and  thus  the 
executive  made  a  check  upon  the  legislative,  and 
vice  versa,  and  the  judiciary  upon  both.  The  people 
by  periodical  elections  and  by  the  referendum  are 
made  to  act  as  a  check  upon  the  legislature,  which 
is  itself  divided  into  tw^o  chambers,  reciprocally 
restraining.  The  power  of  all  elective  officers  is 
restricted  by  their  limited  tenure  of  office,  and  by 
their  amenability  to  law  in  case  of  mal-adminis- 
tration  of  their  duties.^ 

1  In  the  composite  State  there  of  course  exists  a  series  of  checks  in 
addition  to  those  mentioned  above,  which  have  for  their  object  the 
maintenance  of  the  respective  competences  of  the  general  and  local 
governments.     Thus,  for  example,  John  Adams,  in  a  letter  to  John 


400  THE  NATURE   OF  THE   STATE 

All  of  these  reciprocal  checks  in  modern  govern- 
mental systems  have,  as  said,  for  their  object  the 
securing  of  the  people  not  only  from  the  arbitrary 
conduct  of  public  officials,  but  from  hasty  and  unwise 
action  upon  their  own  part.  These  checks  are  thus, 
in  this  latter  respect  at  least,  a  self-recognized  indict- 
ment of  popular  government. 

But  far  above  all  the  restrictions  upon  the  popular 
will  that  have  been  mentioned,  are  those  contained 
in  the  amending  clauses  of  many  of  those  constitu- 
tions that  have  been  reduced  to  written  form.  By 
rendering  the  modifications  of  these  instruments 
exceptionally  difficult,  as  compared  with  other  law, 
not  only  is  the  status  quo  of  the  distribution  of  politi- 
cal power  maintained,  but  the  restrictions  placed  upon 
the  legislative  competences  of  the  ordinary  legislat- 
ures rendered  practically  efficient.  That  is  to  say, 
certain  powers  of  government  are  not  given  to  the 
ordinary  governing  organs  at  all,  however  checked 
and  mutually  balanced  they  may  be,  but  reserved  to 
special  organs  or  constituent  assemblies  that,  when 

Taylor,  gives  the  following  description  of  the  United  States  govern- 
ment :  "  First,"  he  says,  "  the  States  are  balanced  against  the  gen- 
eral government.  Second,  tlie  House  of  Representatives  is  balanced 
against  the  Senate,  and  the  Senate  against  the  House.  Third,  the 
executive  authority  is  in  some  degree  balanced  against  the  legisla- 
ture. Fourth,  the  judiciary  is  balanced  against  the  legislature,  the 
executive,  and  the  State  governments.  Fifth,  the  Senate  is  balanced 
against  the  President  in  all  appointments  to  oflice,  and  in  all  treaties. 
Sixth,  the  people  hold  in  their  hands  the  balance  against  tlieir  own 
representatives  by  periodical  elections.  Seventh,  the  legislatures  of 
the  several  States  are  balanced  against  the  Senate  by  sexennial  elec- 
tions. Eighth,  the  electors  are  balanced  against  the  people  in  choice 
of  President  and  Vice-President." 


POLITICAL  CHARACTERISTICS  AND  TENDENCIES      401 

needed,  require  to  be  specially  convened.  Thus  the 
amending  clauses  may  fairly  be  said  to  be  the  most 
important  clauses  of  any  constitution.  That  which 
is  sought  in  the  adoption  of  written  instruments  of 
government  is  the  means  whereby  legitimate  national 
development  may  be  secured,  and  at  the  same  time 
radical  and  revolutionary  changes  avoided.  Thus 
when  this  power  of  legal  development  is  lacking  or 
rendered  too  difficult  (as,  for  example,  in  the  old 
Articles  of  Confederation),  revolution  is  encouraged. 
Where  constitutional  amendment  is  made  too  easy 
of  accomplishment,  stability  and  continuity  of  politi- 
cal life  is  endangered.  Just  how  severe  these  re- 
strictions should  be  is  one  of  the  gravest  problems 
that  the  statesman  has  to  solve,  for  no  fixed  rule  can 
be  established,  the  answer  in  every  case  dependino- 
upon  the  temperament  of  the  people  and  other  objec- 
tive political  conditions.  In  periods  of  a  State's 
existence,  when  social  and  economic  conditions  are 
rapidly  changing,  more  facile  amendment  is  de- 
manded than  in  more  quiescent  times.  There  are 
thus  many  who  recognize  the  advantage  that  England 
has  enjoyed  in  past  years  in  the  ease  with  which  she 
has  been  able  to  adapt  her  government  to  changing 
needs,  but  who  now,  in  the  face  of  democratic  ig-no- 
ranee  and  unrest,  see  in  this  feature  a  grave  political 
danger,  and  fear  that  it  renders  the  Ship  of  State  (to 
use  Macaulay's  expression)  all  sail  and  no  keel.  In 
our  own  federal  constitution,  these  restrictions  are  to 
be  found  in  their  greatest  strictness.  Not  only  this, 
but  within  comparatively  recent  years  there  has  been 

2d 


402  THE   NATURE   OF   THE    STATE 

exhibited  a  marked  tendency  on  the  part  of  the 
several  Commonwealths  to  restrict  still  further  the 
competences  of  their  legislatures,  already  abridged 
by  the  federal  instrument,  and  to  embody  in  their 
fundamental  law,  constitutional  prohibitions  upon 
legislative  matters  other  than  those  relating  to 
the  organization  and  distribution  of  powers  in  their 
respective  governments.  Thus,  for  example,  the 
constitution  of  California,  as  commented  upon  by 
Bryce,  enumerates  more  than  thirty  distinct  classes 
of  acts,  most  of  them  not  properly  embraced  within 
the  field  of  constitutional  law,  that  are  removed 
from  possibility  of  regulation  by  ordinary  statute. 

Upon  the  continent  of  Europe,  as  we  have  indi- 
cated in  another  place,  constitutional  prohibitions 
have  not  been  legally  operative  because  of  the  lack 
of  judicial  tribunals  competent  to  declare  null  and 
void  legislative  acts  in  contravention  thereto.  At 
the  same  time,  however,  these  written  instruments 
have  undoubtedly  operated  to  some  extent  as  a 
practical  restraint,  owing  to  the  greater  sanctity 
given  to  them  by  being  reduced  to  such  formal 
statement. 

In  addition  to  the  representative  principle,  another 
feature  that  has  operated  as  an  efficient  integrating 
element  in  modern  States,  has  been  that  of  local 
self-government.  Through  this  means,  central  gov- 
ernments of  large  countries  have  been  relieved  from 
portions  of  their  accumulating  burdens,  and,  at  the 
same  time,  their  stability  increased  by  rendering  pos- 
sible a  direct  participation  of  citizens  in  the  manage- 


POLITICAL   CHARACTERISTICS   AND   TENDENCIES      403 

mcnt  of  those  matters  that  pertain  to  their  local 
and  personal  life.  The  development  of  this  feature 
has  of  course  been  rendered  feasible  by  the  in- 
creased facilities  for  rapid  transit  and  communica- 
tion afforded  in  modern  times.  At  the  same  time 
the  advance  of  intellectual  enlightenment  has  broad- 
ened sympathies  and  rendered  apparent  the  general 
identity  of  political  interests,  and  thus  afforded  the 
basis  for  a  political  co-operation  founded  on  some- 
thing more  than  mere  physical  coercion. 

Recapitulating  now  the  chief  characteristics  that 
distinguish  the  modern  State  from  its  ancient  or 
mediaeval  type,  we  find  them  to  be  the  following: 
(1)  Church  and  State  are  divided.  (2)  The  State, 
while  not  immoral,  is  essentially  non-moral.  (3) 
The  representative  principle  is  applied.  (4)  Legal 
responsibility  of  those  in  power  is  demanded.  (5) 
The  right  of  suffrage  is  widened,  until,  in  the  most 
advanced  countries  of  the  world,  practical  manhood 
suffrage  exists.  (6)  The  right  to  hold  office  has  been 
correspondingly  broadened.  (7)  The  equality  of  all 
before  the  law  is  enforced.  (8)  The  limits  of  gov- 
ernmental action  are  clearly  defined.  (9)  The 
separation  of  legislative,  executive,  and  judicial  func- 
tions largely  prevails.  (10)  Constitutional  restric- 
tions prevent  hasty  and  unwise  changes  in  State 
life.  (11)  Public  and  private  rights  are  distin- 
guished. (12)  Positive  written  law  has  largely 
supplanted  unwritten  law.  (13)  Local  self-govern- 
ment has  been  substituted  for  completely  centralized 
control. 


404  THE  NATURE   OF  THE   STATE 

III.    Present  Political  Tendencies  and  Problems. — 

We  turn  now  to  the  final  portion  of  this  last  chapter 
of  our  work  —  to  the  consideration  of  some  of  the 
tendencies  that  are  apparent  in  our  political  life,  and 
to  a  mention  of  the  problems  to  which  it  would  seem 
these  tendencies  will  necessarily  lead. 

Beginning  first  with  the  relation  of  States  to  each 
other,  the  most  obvious  fact  is  the  increasing  inter- 
nationality  of  interests  that  attends  advancing  civil- 
ization. Improved  means  of  transportation  and 
communication  hasten  this  movement  upon  the 
economic  side ;  higher  ideals  of  humanity  promote 
it  upon  the  ethical  and  intellectual  side.  Already 
these  interstate  relations  have  become  both  numer- 
ous and  definite.  The  principles  of  international 
conduct  that  are  generally  accepted  by  all  civilized 
peoples  already  constitute  a  very  considerable  body 
of  procedure.  In  numberless  ways  States  are  united 
by  treaties,  not  only  for  purposes  of  mutual  mili- 
tary offence  and  defence,  but  for  the  regulation  of 
common  political  and  economic  interests.  In  many 
cases  common  administrative  organs  have  been  estab- 
lished, as,  for  example,  for  the  regulation  of  navi- 
gation of  rivers,  for  postal,  telegraph,  and  railway 
services,  etc.  The  State  protects  its  citizens  beyond 
its  own  limits,  and  with  the  acquiescence  and  assist- 
ance of  friendly  powers  apprehends  and  brings  back 
from  foreign  lands  the  fleeing  criminal,  and  through 
its  consular  and  diplomatic  agents  exercises,  espe- 
cially among  the  less  advanced  peoples,  many  judi- 
cial and  administrative  functions. 


POLITICAL   CHARACTERISTICS   AND   TENDENCIES      405 

The  internationality  of  industrial  interests  is  seen 
in  the  tendency  of  workingmen's  unions  to  pass  be- 
yond State  limits.  Several  international  labor  con- 
gresses have  been  held,  and  in  at  least  one  instance, 
States  have  themselves  taken  official  part  in  conven- 
tions for  the  discussion  of  interests  relating  to  the 
laboring  man.  When  recently  the  wharf  men  of 
London  struck,  they  received  substantial  pecuniary 
aid  from  Australia  and  other  countries.  Prices  of 
staple  commodities  are  no  longer  regulated  by  the 
conditions  of  the  home  market,  but  depend  upon  the 
world  supply  and  the  world's  market.  The  prosper- 
ity of  each  country  is  bound  up  with  the  financial 
condition  of  the  others.  Thus,  so  sensitive  has 
become  the  money  market,  that  a  few  years  ago, 
because  of  the  insolvency  of  a  South  American  re- 
public, all  the  large  banking  houses  of  Europe  were 
disturbed,  and  owing  to  their  efforts  to  secure  them- 
selves, the  United  States  in  turn  barely  escaped  a 
serious  financial  panic. 

In  the  field  of  international  politics  proper,  the 
present  century  has  seen  the  peaceful  settlement  by 
arbitration  of  many  international  difficulties  that  in 
former  times  would  have  been  submitted  to  the  arbit- 
rament of  the  sword.  And  there  is  evident  an  in- 
creasing disposition  on  the  part  of  civilized  States  to 
resort  to  this  peaceful  means  of  settlement. 

The  facts  that  we  have  thus  far  mentioned  tend 
to  render  closer  the  relations  between  independent 
States,  and  to  make  less  likely  a  future  resort  to 
arms  in  cases  of  disao-reement.     But  it  is  not  to  be 


406  THE   NATUKE   OF  THE   STATE 

denied  tliat  there  exist,  in  Europe  at  least,  factors 
that  operate  in  the  other  direction.  The  chief  of 
these  are  the  two  principles  of  "balance  of  power" 
and  "  rights  of  nationality " ;  the  one  giving  rise 
to  the  maintenance  of  enormous  standing  armies, 
through  the  effort  of  each  State  to  provide  a  military 
force  sufficient  to  secure  its  present  status  quo  in  the 
society  of  States ;  and  the  other  through  the  demand 
for  autonomy  of  nations  now  joined  by  political 
ties  to  alien  races.  Within  the  present  century  this 
latter  principle  has  demonstrated  its  force  by  sepa- 
rating Belgium  and  Holland,  grouping  the  Germans 
of  the  North  into  a  powerful  empire,  securing  in 
large  measure  the  independence  of  Hungary,  reunit- 
ing Italy,  and  establishing  the  political  freedom  of 
Greece.  In  Spain,  France,  and  Russia  also,  the 
national  spirit  has  made  itself  felt,  and  to-day  is  still 
active  in  Bohemia  and  other  non-Teutonic  provinces 
of  Austria,  in  Belgium  as  a  disturbing  factor  between 
the  French  and  Walloons,  in  Canada  among  her 
Gallic  population,  and  in  England  herself,  who,  in 
the  Irish  Question,  is  discovering  the  difficulty  with 
which  Celtic  and  Saxon  ideas  may  be  harmonized. 

What  will  be  the  outcome  of  these  conflicting 
conditions,  it  would  be  a  rash  prophet  who  would 
predict.  Whether  as  the  result  of  some  great  war  a 
condition  will  be  reached  in  which  disarmament  will 
be  practically  possible ;  whether,  as  suggested  in  the 
first  chapter  of  this  work,  the  present  demand  for  a 
coincidence  of  nationality  and  political  individuality 
will  be  a  passing  phase  rather  than  a   permanent 


POLITICAL  CHARACTERISTICS  AND  TENDENCIES      407 

product  of  civilization,  we  cannot  foresee.  We  can, 
however,  declare  its  possibility.  To  the  political 
optimist  it  is  a  probability. 

There  is  in  the  minds  of  some  the  confident  expecta- 
tion that  the  world  is  yet  to  see  a  time  in  which  the  dan- 
ger of  war  shall  be  practically  abolished,  and  all  States 
united  by  such  firm  and  formal  international  ties  as 
to  constitute  of  them  a  veritable  "  World-State." 

Such  an  idea  as  this  was  in  the  minds  of  Henry  lY. 
of  France  and  his  great  minister  Sully  in  the  project 
to  establish  a  confederation  of  Europe  under  the  name 
of  the  "  Most  Christian  Republic,"  which  was  to  be 
composed  of  fifteen  dominions.  Such  was  the  idea 
embodied  in  the  Project  of  Perpetual  Peace  of  the 
Abbe  St.  Pierre,  and  again  revived  by  J.  J.  Rous- 
seau and  by  Bentham. 

The  practical  possibility  of  a  World-State  is 
strongly  urged  by  Bluntschli.^  He  does  not  consider 
discouraging  the  attempts  and  failures  of  Alexander, 
of  the  Romans,  and  of  Napoleon,  the  reasons  for 
theu"  failures,  at  those  times,  being  now  apparent, 
and  being  such  reasons  as  are  at  the  present  time 
rapidly  disappearing  with  increasing  civilization, 
or  already  non-existent. 

"  Meanwhile,"  says  Bluntsclili,  "  unconquerable  time  itself 
■works  on  unceasingly,  bringing  the  nations  nearer  to  one  another, 
and  awakening  the  universal  consciousness  of  the  community 
of  mankind ;  and  this  is  the  natural  preparation  for  a  common 
organization  of  the  world.  It  is  no  mere  matter  of  accident 
that  modern  discoveries  and  numerous  new  means  of  com- 
munication altogether  serve  this  end,  that  the  whole  science 
1  Theory  of  the  State,  trans.  2d  ed.,  Bk.  I.  Chap.  II. 


408  THE   NATURE   OF   THE   STATE 

of  modern  times  follows  this  impulse  and  belongs  in  the  first 
place  to  humanity,  and  only  in  a  subordinate  way  to  partic- 
ular peoples,  while  a  number  of  hindrances  and  barriers  that 
lay  between  nations  are  disappearing.  Even  at  the  present 
day  all  Europe  feels  every  disturbance  in  any  particular  State 
as  an  evil  in  which  she  has  to  suffer,  and  what  happens  at 
her  extremest  limits  immediately  awakens  universal  interest. 
The  spirit  of  Europe  already  turns  its  regards  to  the  circuit  of 
the  globe,  and  the  Aryan  race  feels  itself  called  to  manage  the 
world. 

"  We  have  not  yet  got  so  far ;  at  the  present  day  it  is  not  so 
much  will  and  power  that  are  wanting  as  spiritual  maturity. 
The  members  of  the  European  family  of  nations  know  their 
superiority  over  other  nations  well  enough,  but  they  have  not 
yet  come  to  a  clear  understanding  among  themselves  and  about 
themselves.  A  definite  result  is  not  possible  until  the  enlight- 
ening word  of  knowledge  has  been  uttered  about  this  and 
about  the  nature  of  humanity,  and  until  the  nations  are  ready 
to  hear  it. 

"  Till  then,  the  universal  empire  will  be  an  idea  after  which 
many  strive,  which  none  can  fulfil.  But  as  an  idea  of  the 
future  the  general  theory  of  the  State  cannot  overlook  it. 
Only  in  the  universal  empire  will  the  true  human  State  be 
revealed,  and  in  it  international  law  will  attain  a  higher  form 
and  an  assured  existence.  To  the  universal  empire  the  par- 
ticular States  are  related,  as  the  nations  to  humanity.  Par- 
ticular States  are  members  of  the  universal  empire  and  attain 
in  it  their  completion  and  their  full  satisfaction.  The  pur- 
pose of  the  universal  State  is  not  to  break  up  particular  States 
and  oppress  nations,  but  better  to  secure  the  peace  of  the 
former  and  the  freedom  of  the  latter.  The  highest  concep- 
tion of  the  State — which,  however,  has  not  yet  been  realized — 
is  thus  :  The  State  is  humanity  organized,  but  humanity  as 
masculine,  not  as  feminine ;  the  State  is  the  man." 

It  is  not  our  purpose  to  discuss  here  in  detail  the 
arguments  that  might  be  raised  in  support  or  refu- 


POLITICAL  CHARACTERISTICS  AND  TENDENCIES      409 

tation  of  those  opinions,  but  merely  to  suggest  the 
existence  of  such  an  expectation  and  aspiration. 
Bluntschli  himself  cites  in  a  note  the  objections  of 
Laurent  to  the  feasibility  of  the  World-State,  the 
principal  ones  being  the  incompatibility  of  such  a 
universal  type  with  the  Sovereignty  of  the  individual 
States,  and  that  the  World-State,  if  really  endowed 
with  the  necessary  authority  and  force  to  control  the 
individual  States,  w^ould  have  the  power  to  oppress 
them.  Bluntschli,  however,  assumes  to  answer  sat- 
isfactorily these  questions.  He  admits  that  ethnic, 
lingual,  geographic,  historic,  and  economic  pecul- 
iarities require  the  continued  existence  of  separate 
and  independent  nationalities,  but  says  that  their 
political  autonomy  would  not  be  destroyed  when 
embraced  w^ithin  a  World-State  system.  It  is  to  be 
observed,  however,  that  Bluntschli  finds  the  model  of 
this  future  World-State  in  the  Bundesstaat,  but  that 
according  to  his  theory  the  individual  members  of 
a  Bundesstaat  still  retain  a  portion  of  the  sovereign 
power.  This  theory  we  have  shown  to  be  incorrect, 
that  Sovereignty  is  indivisible,  and  that  if  the  mem- 
bers of  a  union  retain  their  individual  Sovereignty, 
a  State  is  not  created  by  their  association. 

As  time  goes  on  the  association  of  States  will  un- 
doubtedly grow  closer,  and  the  rules  of  international 
morality  will  increase  both  in  force  and  number,  but 
that  a  genuine  World-State,  or  a  State  embracing  the 
civilized  nations  of  the  world,  will  ever  be  estab- 
lished, does  not  seen  possible.  Such  a  type  would 
require  the  surrender  of  the  Sovereignty  and  indepen- 


410  THE  NATURE   OF  THE    STATE 

dence   of  the   individual  nations,  —  a   surrender   to 
which  it  is  not  conceivable  they  will   ever   submit. 

Leaving  now  the  developments  to  be  expected  in 
the  relations  of  States  to  each  other  as  members  of  a 
family  of  nations,  we  have  to  consider  the  tendencies 
that  appear  to  be  at  work  in  the  development  of  the 
internal  life  of  the  particular  States  themselves. 

From  this  standpoint,  the  most  striking  feature  of 
the  present  day  is,  as  already  said,  the  development 
of  popular  control  of  government.  By  its  own  in- 
herent nature  one  step  in  democratic  progress  leads 
to  a  further  one.  There  is  always  present  to  the 
party  in  power  the  temptation  to  broaden  the  fran- 
chise for  the  sake  of  the  popular  support  that  it 
will  thus  obtain.  The  time  will  always  come,  when, 
wisely  or  unwisely,  this  temptation  will  be  yielded 
to.  "  When  a  nation  modifies  the  elective  qualifica- 
tion," says  De  Tocqueville,  "it  may  easily  be  fore- 
seen that  sooner  or  later  that  qualification  will  be 
entirely  abolished.  There  is  no  more  invariable  rule 
in  the  history  of  society :  the  farther  electoral  rights 
are  extended,  the  more  is  felt  the  need  of  extending 
them ;  for  after  each  concession  the  strength  of  the 
democracy  increases,  and  its  demands  increase  with 
its  strength.  The  ambition  of  those  who  are  below  the 
appointed  rate  is  irritated  in  exact  proportion  to  the 
great  number  of  those  who  are  above  it.  The  exception 
at  last  becomes  the  rule,  concession  follows  concession, 
and  no  stop  can  be  had  short  of  universal  suffrage."  ^ 

1  Democracy  in  America,  Am.  ed.  1849,  p.  59. 


POLITICAL  CHARACTERISTICS  AND   TENDENCIES      411 

A  striking  demonstration  of  the  above  rule  is  seen 
in  the  steady  widening  of  the  suffrage  in  England 
during  the  last  fifteen  years.  The  same  tendency  is 
at  work  in  the  monarchies  of  Europe,  though  not 
yet  carried  to  the  same  extent,  the  last  conspicuous 
triumph  of  this  principle  being  the  modification 
of  the  electoral  qualification  in  Belgium  in  1894. 
The  history  is  the  same  in  our  own  country,  wdiere 
the  tendency  has  been  so  strong  as  to  prevent  even 
decent  restrictions  upon  the  voting  power  of  the 
newly  landed  and  ignorant  aliens  who  yearly  crowd 
in  thousands  to  our  shores. 

A  step  once  taken  in  this  direction  is  seldom  if 
ever  retraced.  The  suffrage  once  broadened,  its  sub- 
sequent restriction  seems  almost  impossible.  Such  a 
step  requires  a  fortitude  and  disinterestedness  on  the 
part  of  the  parties  in  power  such  as  history  has 
shown  them  seldom  to  possess. 

Of  character  analogous  to  the  above  is  the  pre- 
cipitate manner  in  which  several  of  our  territories 
have  been  admitted  to  the  Union  as  States  —  their 
admission  being  secured  more  by  the  additional 
political  influence  that  it  was  calculated  would 
redound  to  the  party  consenting  to  such  admission, 
than  to  the  sound  expediency  of  the  step. 

It  is  a  fair  prediction,  then,  to  say  that  the  world  is 
to  see  in  the  future  a  continued  advance  in  democracy 
and  popular  government.  This  being  so,  we  are  led  to 
consider  what  effect  this  development  will  have,  when 
taken  in  conjunction  with  other  changing  conditions, 
upon  good  government  and  general  prosperity. 


412  THE  NATURE   OF  THE   STATE 

Side  by  side  with  this  movement  that  is  hurrying 
the  civilized  world  towards  democracy  is  the  increas- 
ing pressure  that  is  brought  to  bear  by  the  aug- 
menting complexity  of  social  and  industrial  relations 
for  the  State  constantly  to  widen  the  scope  of  its 
activities.  Will  the  union  of  these  two  tendencies  give 
us  good  government?  A  unanimously  affirmative 
answer  is  by  no  means  given  to  this. 

"  If  I  am  in  any  degree  right,"  says  Sir  Henry 
Maine,  "  popular  government,  especially  as  it  ap- 
proaches the  democratic  form,  will  tax  to  the  utmost 
all  the  political  sagacity  and  statesmanship  of  the 
world  to  keep  it  from  misfortune."  And  again  he 
says,  "We  may  say  generally  that  the  gradual 
establishment  of  the  masses  in  power  is  of  the 
blackest  omen  for  all  legislation  founded  on  scien- 
tific opinion,  which  requires  tension  of  mind  to 
understand  it  and  self-devotion  to  submit  to  it." 
"  The  nations  of  our  time,"  says  De  Tocqueville, 
"  cannot  prevent  the  conditions  of  men  from  becom- 
ing equal,  but  it  depends  upon  themselves  whether 
the  principle  of  equality  is  to  lead  them  to  servitude 
or  freedom,  to  knowledge  or  barbarism,  to  prosperity 
or  to  wretchedness." 

It  must  be  ever  remembered  that  the  decisive 
point  in  the  success  of  a  popular  government  lies 
in  the  quality  of  its  voting  citizens.  Of  what  use 
is  it  to  perfect  governmental  forms  and  methods 
if  the  constituency  be  incapable  of  their  proper 
management  ?  There  are  those  who  would  go  so  far 
as  to  liave  us  believe  that  the  exercise  of  the  suffrage 


POLITICAL  CHARACTERISTICS  AND  TENDENCIES      413 

is  an  inherent  inalienable  right  of  the  free-born  citi- 
zen. It  does  not  need  to  be  said  that  it  is  not. 
It  is  a  political  privilege,  and  is  founded  only  on 
law,  and  a  claim  to  its  extension  to  all  individuals 
has  not  even  that  moral  or  utilitarian  basis  that  sup- 
ports the  demand  for  an  equality  in  those  so-called 
natural  rights  which  we  discussed  in  a  former  chap- 
ter. The  citizen  is  endowed  with  right  of  suffrage,  in 
order  that  by  its  exercise  the  good  of  society  may  be 
maintained,  and  it  is  for  society  to  determine  to  what 
extent,  and  by  whom,  and  under  what  conditions  this 
power  is  to  be  used.  Amiel  strikes  the  vital  point, 
when  he  says  in  his  Journal,  that  "  the  pretension 
that  every  man  has  the  necessary  qualities  of  a 
citizen  simply  because  he  was  born  twenty-one 
years  ago,  is  as  much  as  to  say  that  labour,  merit, 
virtue,  character,  and  experience  are  to  count  for 
nothing;  and  we  destroy  humility  when  we  proclaim 
that  a  man  becomes  the  equal  of  all  other  men  by 
the  mere  mechanical  and  vegetative  process  of  nat- 
ural growth." 

But  leaving  this  point.  Aside  from  the  evils  aris- 
ing from  an  unfit  constituency,  there  are  defects 
inherent  in  the  popular  control  of  government.  In 
the  first  place,  democracy  leads  to  mediocrity  of 
statesmanship.  The  leaders  are  selected  by  the 
masses,  and  it  is  not  the  highest  intellectual  and 
moral  endowments  that  satisfy  their  demands. 

Secondly,  democracy  necessarily  leads  to  the  devel- 
opment of  the  party  system  in  all  its  intensity,  and 
the  excess  of  party  enthusiasm  and  rivalry,  but  too 


414  THE   NATURE   OF  THE   STATE 

often  leads  to  the  tyranny  of  the  majority,  a  tyranny 
which  the  party  discipline  renders  possible.  The 
strictness  of  the  party  organization  leads  also  to  the 
crushing  out  of  individuality  and  to  the  suppression 
of  liberty  of  opinion,  a  revolt  against  party  dicta- 
tion being  punished  by  total  political  ostracism. 
Furthermore,  once  established  and  perfected,  party 
machinery  becomes  a  powerful  engine,  capable  of 
being  utilized  for  the  accomplishment  of  personal 
and  dishonest  ends.  It  is  not  intimated  by  these 
reflections  that  party  government  is  to  be  deplored. 
In  all  popular  governments,  whether  of  the  monar- 
chical or  republican  type,  it  is  a  necessity.  It  is 
merely  suggested  that  as  existing  in  the  modern 
constitutional  state,  the  party  system  affords  prob- 
lems of  great  significance  to  the  student  of  political 
science.  How  may  it  be  organized  and  controlled 
so  that  its  beneficial  results  may  be  obtained,  while 
its  excesses  and  liability  to  corruption  are  avoided. 

Turning  now  to  another  point  we  note  that  gov- 
ernmental functions  may  be  roughly  divided  into 
two  classes,  —  the  enactment  of  wise  laws,  and  their 
intelligent  and  effective  execution.  The  one  embraces 
the  legislative  functions,  the  other  the  administrative 
duties. 

In  addition  to  the  difficulty  of  obtaining  an  effi- 
cient and  honest  corps  of  servants  for  the  execution 
of  laws  when  enacted,  there  arise  serious  problems 
(especially  in  the  United  States)  in  connection  with 
the  composition  and  methods  of  work  in  the  chief 


POLITICAL  CHARACTEIIISTICS  AND  TENDENCIES      415 

legislative  body.  The  first  of  these  is  presented  in 
connection  with  our  size.  Already  the  ratio  of  ap- 
portionment has  risen  from  one  representative  to 
every  33,000  of  population  to  one  for  every  173,901, 
and  it  does  not  seem  feasible  to  still  further  increase 
this  ratio.  Yet  the  lower  house  of  our  Congress  is 
undeniably  too  large. 

Parliamentary  government  is  supposed  to  be  a 
government  by  deliberation,  but  deliberation,  in  a 
true  sense,  is  out  of  the  question  in  our  House. 
Committee  government  has  become  a  necessity,  and 
there  are  grave  objections  to  committee  legislation, 
where,  as  in  our  Congress,  the  committees  wield 
such  influence  and  power.  Among  these  evils  are 
secrecy,  lack  of  open  debate,  and  practical  irrespon- 
sibility. 

The  Caucus  becomes  a  necessity  in  a  large  legis- 
lative body,  and  thus  party  discipline  (already  too 
strict)  is  introduced  in  organized  form  into  the  very 
halls  of  the  legislature  itself. 

Furthermore,  from  bulky  size,  arises  the  necessity 
of  the  "  previous  question  "  and  other  extraordinary 
powers  of  the  presiding  officer  to  close  debate. 
Even  in  our  smaller  Senate  the  exercise  of  this 
power  has  become  a  necessity,  as  was  made  appar- 
ent in  the  last  Extra  Session. 

But  autocratic  power  of  the  Speaker  means  the 
power  of  the  majority  to  oppress  the  minority.  It 
leaves  it  only  to  the  forbearance  of  the  party  in 
power  whether  the  minority  shall  have  any  oppor- 
tunity whatever  for  the  expression  of  then-  views; 


416  THE  NATURE  OF  THE   STATE 

and  this  is  a  check  that  can  be  least  relied  upon 
when  it  is  most  needful.  But  if  we  are  to  have 
freedom  in  government,  the  rights  of  the  minority 
must  be  respected.  For  the  tyranny  of  the  majority 
is  one  of  the  evils  most  to  be  feared  in  a  democracy, 
—  the  most  to  be  feared  because  of  the  ease  wdth 
which  it  can  be  exercised  and  the  severity  with  which 
it  operates.  There  can  be  no  tyranny  of  a  monarch 
so  intolerable  as  that  of  the  multitude,  for  it  has  the 
power  behind  it  that  no  king  can  sway. 

In  addition  to  these  structural  difficulties  in  the 
legislative  body  of  a  democratic  nation  such  as  ours, 
is  the  difficulty  of  obtaining  legislators  of  that  cali- 
bre of  mind  that  will  fit  them  to  judge  intelligently 
regarding  the  enormous  variety  of  interests,  eco- 
nomic, social,  and  political,  that  come  before  them 
for  consideration.  There  is  now  demanded  on  the 
part  of  our  law  makers,  not  only  patriotism  and 
political  sagacity  of  the  highest  order,  but  scientific 
knowledge,  and  strict  disinterestedness  far  beyond 
that  formerly  required.  Many  of  the  economic 
interests  that  are  now  discussed  in  our  legislative 
halls  require,  in  the  highest  degree,  scholarly 
research  and  judgment ;  and  the  necessity  for  dis- 
interestedness is  enhanced  by  the  fact  that,  in  the 
settlement  of  these  material  matters,  the  economic 
interests  of  special  classes  and  localities  are  necessa- 
rily antagonized  or  favoured,  and  thus  the  incentive 
to  lobbying  and  corruption  enormously  increased. 

Finally  comes  the  question  whether,  however  con- 
stituted and  however  managed,  our  Congress  is  not 


POLITICAL  CHARACTEmSTICS  AND  TENDENCIES      417 

becoming  swamped  by  the  amount  of  business  heaped 
upon  it;  and  this  is  an  evil  which  will  necessarily 
become  greater  as  the  years  advance.^ 

Democracy,  as  Maine  has  pointed  out,  is  but  a 
form  of  government;  namely,  that  in  which  the 
people  have  been  generally  admitted,  either  directly 
or  indirectly  through  their  representatives,  to  a  par- 
ticipation in  the  administration  of  public  affairs.  If, 
therefore,  the  evils,  or  at  least  the  difficulties,  that 
appear  in  its  practical  operation  are  to  be  obviated 
or  overcome,  measures  administrative  in  character 
must  be  largely  employed.  It  is  true  that  the  great 
desideratum  is  the  securing  of  good  officials  and  a 
sound  public  sentiment,  and  that  given  these  two 
elements  any  form  of  government  will  give  fairly 
satisfactory  results.  But  the  point  here  made,  is, 
that  if  these  necessary  elements  are  to  be  obtained 
in  a  democracy,  the  energy  of  the  political  power 
itself  must  be  consciously  applied. 

The  late  Emile  de  Laveleye,  the  eminent  Belgian 
publicist,  in  his  w^ork  entitled  Le  Gouvernement  dans 

1  During  the  Fifty-first  Congress  there  were  introduced  in  the 
Senate  5293  Senate  bills  and  joint  resolutions,  and  in  the  House  of 
Representatives  14,330,  making  a  total  of  19,623.  Of  these,  611 
public,  and  1579  private,  bills  (mostly  pension  bills)  became  laws, 
making  a  total  of  2190,  being  a  little  over  9  per  cent  of  the  whole 
number  introduced.  The  Congressional  Record,  covering  only  the 
first  session  of  this  Congress,  included  over  11,000  finely  printed 
quarto  pages.  As  further  illustrating  the  amount  of  business  com- 
ing before  this  Congress,  it  may  be  mentioned  that  30,320  printed 
documents  were  received,  which  number,  if  multiplied  by  size  of  the 
editions,  shows  that  more  than  30,000,000  pieces  of  printed  matter 
were  handled  in  either  House.  See  T.  H.  McKee's  Manual  of  Con- 
gressional Practice,  p.  291. 
2e 


418  THE   NATURE   OF  THE   STATE 

la  Democratie  (published  in  1891),  emphasized  no  one 
point  so  strongly  as  that  of  the  necessity  for  a  sub- 
stantial equality  of  social  and  economic  conditions 
among  a  people  organized  under  principles  of  political 
equality.  History  shows  that  the  attainment  of 
political  equality  leads  inevitably  to  the  demand  for 
social  and  economic  equality,  for  it  does  not  take 
long  for  the  lower  classes  to  discover  that  equality 
in  political  rights  is  of  but  little  value  if  they  are 
not  thereby  able  to  raise  their  material  condition  to 
a  comparative  degree  of  equality  with  that  of  the 
other  members  of  society.  "  Equality  in  political 
rights,"  says  Ritchie,  "  along  with  great  inequalities 
in  social  condition,  has  laid  bare  'the  social  ques- 
tion,' which  is  no  longer  concealed,  as  it  formerly 
was,  behind  the  struggle  for  equality  before  the  law 
and  for  equality  in  political  rights."  ^ 

Thus,  with  the  abolition  of  artificial  distinc- 
tions, such  as  those  of  birth,  wealth,  and  official 
rank,  there  disappears  at  the  same  time  the  apparent 
justification  for  an  inequality  in  economic  burdens 
and  engagements.  Need  any  one  ask  whether  the 
French  people  would  have  so  long  endured  the 
monstrously  unjust  apportionment  of  wealth  and 
privileges  of  the  old  regime,  had  they  not  had 
before  their  eyes  those  distinctions  of  ecclesiastical 
and  noble  rank  that  seemed  to  afford  a  color  of  title 
to  exceptional  advantages? 

It  therefore  well  behooves  the  legislator  in  a 
democratic  government,  that,  so  far  as  possible,  the 

^  Natural  Rights,  p.  258. 


POLITICAL  CHARACTERISTICS  AND  TENDENCIES      419 

measures  to  which  he  gives  his  assent  shall,  if  not 
positively  promoting  an  increased  economic  equality, 
at  least  have  no  tendency  to  prevent  it.  The  neces- 
sity for  party  government  and  the  danger  of  major- 
ity tyranny  have  been  already  mentioned.  Such  a 
danger  is  of  course  rendered  still  more  serious,  if 
there  be  a  separation  of  the  community  into  distinct 
classes  of  rich  and  poor.  Nothing  will  more  quickly 
force  a  minority  to  desperation  and  incite  them  to 
physical  force  and  lawlessness  than  class  legislation 
based  upon  property. 

At  the  same  time  there  are  the  dancrers  of  state 
socialism  to  be  guarded  against.  Just  as  there  is  in 
the  democratic  state  the  constant  pressure  for  an 
extension  of  the  suffrage,  so  there  is  always  the 
demand  on  the  part  of  the  masses  for  any  state 
action  that  offers  any  apparent  hope  of  relieving 
their  condition.  '•  When  the  people  is  invested  with 
the  supreme  authority "  (to  quote  again  the  sage 
De  Tocqueville)  "  the  perpetual  sense  of  their  own 
miseries  impels  the  rulers  of  society  to  seek  for 
perpetual  ameliorations."  ^ 

Whatever  may  be  said  of  the  position  taken  by 
Mr.  Kidd  in  his  Social  Evolution  in  regard  to  the 
part  played  by  religion  and  its  non-rational  basis,  the 
statement  cannot  be  gainsaid,  that,  for  the  great 
majority  of  persons  in  society,  as  at  present  con- 
stituted, the  laws  of  human  competition  work  with 
unjust  and  cruel  severity,  and  that,  apart  from  some 
ulterior  sanction,  there  can  be  no  reason  why  such 

1  Democracy  in  America,  Am.  ed.  1849,  p.  233. 


420  THE  NATURE   OF  THE   STATE 

individuals  should  consciously  sacrijfice  themselves  for 
the  good  of  others,  or  for  the  ultimate  benefit  of 
unborn  generations.  Whether  or  not  all  social 
altruism  rests  upon  religion,  or  whether  religion  is 
essentially  irrational  and  destined  to  disappear  as 
intellectual  enlightenment  advances,  is  another  ques- 
tion, and  one  that  we  need  not  here  consider.  But 
we  may  ask  ourselves  what  will  be  the  attitude  that 
will  be  taken  by  the  masses  generally  when  they 
come  to  see  that  the  favored  few  obtain  their  advan- 
tages largely  by  climbing  upon  others'  shoulders,  and 
that  in  the  government  is  to  be  found  a  force, — the 
control  of  which  is  in  their  own  hands, — whereby  is 
offered  at  least  a  possibility  of  mitigating  the  evils 
of  their  lot  and  of  equalizing  the  conditions  that  the 
"  struggle  for  existence "  has  rendered  so  unequal 
and,  as  to  them,  so  oppressive.  It  does  not  seem  pos- 
sible but  that  the  fuller  recognition  of  these  facts, 
which  must  come  with  the  wider  spread  of  education, 
must  greatly  intensify  the  demand  of  the  lower 
classes  for  greater  material  equality  —  a  demand 
that  in  default  of  means  on  their  part  can  only  be 
met  by  the  employment  of  the  power  of  the  State. 
At  the  same  time,  of  course,  this  very  increase  of 
knowledge  will  render  more  rational  and  feasible  the 
plans  for  securing  the  ends  that  will  be  advocated 
by  them.  The  only  danger  is  that  the  pressure  that 
will  come  from  the  more  unfortunate  classes  will 
result  in  efforts  at  amelioration  before  the  spread 
of  intelligence  and  morality  is  such  as  will  ensure 
that  these  efforts  will  be  directed  to  the  real  and 


POLITICAL  CHARACTERISTICS  AND  TENDENCIES      421 

permanent  good,  not  to  the  apparent  temporary 
advantage  only. 

In  still  another  respect,  the  democratically  gov- 
erned State  is  placed  between  two  dangers.  Popu- 
lar government,  as  already  indicated,  is  not  such  a 
form  of  rule  as  naturally  attracts  to  its  service 
the  best  officials.  It  is  therefore  necessary  that 
such  a  government  should  offer  all  possible  induce- 
ments to  draw  to  itself  the  best  of  its  citizens. 
The  chief  of  these  inducements  is,  necessarily,  ample 
pecuniary  reward.  At  the  same  time,  until  its  elec- 
toral system  is  perfected,  and  a  healthy  moral 
sentiment  in  its  politics  created,  to  augment  the 
remuneration  of  office  is  but  to  increase  party  spoil, 
and  to  intensify  the  baser  struggle  for  public  position 
for  the  mere  sake  of  its  pecuniary  worth. 

Still  another  difficulty  against  which  the  popu- 
larly organized  government  has  to  contend  is  that, 
while  it,  more  than  any  other  political  form,  needs 
for  its  successful  conduct  an  exact  and  rigid  enforce- 
ment of  the  law,  there  is  a  constant  timidity  on  the 
part  of  its  officials  that  arises  from  the  fear  of  dis- 
pleasing the  demos,  their  master.  Thus,  in  cases  of 
riots  and  popular  disturbances  generally,  in  which 
the  law  of  the  land  is  violated,  there  is  always  a 
greater  difficulty  in  securing  prompt  and  decisive 
action  for  the  complete  enforcement  of  the  law  in  a 
democracy,  than  there  is  in  obtaining  similar  action 
from  a  more  absolutely  organized  political  power. 
We  are  by  no  means  disposed  to  assert  that  in  the 
present  state  of  society  the  lower  classes  have  secured 


422  THE  NATURE   OF  THE   STATE 

to  them  by  the  law  their  full  share  of  justice,  and 
that  under  present  conditions  the  power  that  wealth 
gives  is  not  used  in  securing  for  its   owners  some- 
what more  than  their  due  share  of  public  benefits, 
or  at  least  in  enabling  them  to  avoid  their  proper 
proportion  of  public  duties;  but  what  it  is  earnestly 
maintained  is,  that  nowhere  more  than  in  the  demo- 
cratic state  is  it  essential  that  there  should  be  an 
exact  and  complete  enforcement  of  the  law,  what- 
ever it  may  be,  at  any  given  time  when  its  pro- 
visions are  violated.     If   the    law  be  anachronistic, 
or  in  any  way  patently  unjust,  nothing  will  more 
surely  secure  its  repeal  than  the  odium  that  will 
attach  to  it  from  its  rigid  enforcement.     But  as  long 
as  it  is  law,  it  should  be  treated  as  such.     A  tolerated 
violation  of  it  will  inevitably  weaken  the  law-abiding 
sentiment  of  the  community,  and  it  is  hardly  pos- 
sible to  conceive  of  a  case  in  which  the  immediate 
benefit  to  be  derived  from  the  disregard  of  a  legal 
rule  will   not   be   far   outweighed   by  the  ultimate 
disadvantages  that  would  follow.     The  law-abiding 
habit  of  the  Anglo-Saxon  race  has  been  its  greatest 
glory,  and  chiefly  to  that  feeling  is  due  the  success 
that  it  has  achieved  in  its  various  homes  in  the  estab- 
lishment and  maintenance  of  democratic  government. 
In  this  connection  arises  the  vital  necessity  in  a 
popular  government  for  an  intelligent  and,  above  all, 
independent  judiciary.      And  by  this  we  mean  one 
independent  not  only  of  the  legislative  and  executive 
branches,  but  of  popular  influence  and  control.     The 
tendency  apparent  during  recent  years  in  various  of 


POLITICAL   CHARACTEEISTICS  AND  TENDENCIES      423 

the  Commonwealths  of  the  United  States  to  render 
their  judiciaries  elective  in  character,  whereby  they 
have  been  deprived  of  that  former  independence 
which  had  been  secured  to  them  by  fixed  salaries 
and  life  or  long  tenure  of  office,  is  therefore  one 
that  cannot  be  too  strongly  deprecated. 

The  above  considerations  show  us  that  for  the 
successful  establishment  and  maintenance  of  demo- 
cratic government  there  is  necessary  a  disposition 
on  the  part  of  the  people  not  only  to  refuse  submis- 
sion to  a  restraint  that  is  arbitrary  and  oppressive, 
but  likewise  a  willingness  to  yield  to  self-set  control. 
They  must  be  able  to  draw  and  apply  the  distinc- 
tion between  public  liberty  and  private  license, 
between  manly  self-dependence  and  individual  law- 
lessness. 

After  all  that  has  been  said,  it  will  seem  only 
an  obvious  truism  to  say  that  popular  government 
demands  a  high  degree  of  enlightenment  on  the 
part  of  its  citizens.  "  Governments  such  as  ours," 
says  Professor  Woodrow  Wilson  in  his  usual  forcible 
manner,  "  are  founded  upon  discussion,  and  govern- 
ment by  discussion  comes  as  late  in  political  as 
scientific  thought  in  intellectual  development.  It  is 
a  habit  of  state  life  created  by  long-established  cir- 
cumstances, and  is  possible  for  a  nation  only  in  the 
adult  age  of  its  political  life.  The  people  who  suc- 
cessfully maintain  such  a  government  must  have 
gone  through  a  period  of  political  training  which 
shall  have  prepared  them  by  gradual  steps  of  ac- 
quired privilege  for  assuming  the  entire  control  of 


424  THE   NATURE   OF  THE   STATE 

their  affairs.  They  must  have  acquired  adult  self- 
reliance,  self-knowledge,  and  self-control,  adult  sober- 
ness and  deliberateness  of  judgment,  adult  sagacity 
in  self-government,  adult  vigilance  of  thought  and 
quickness  of  insight.  When  practised,  not  by  small 
communities,  but  by  wide  nations,  democracy,  far 
from  being  a  crude  form  of  government,  is  possible 
only  amongst  peoples  of  the  highest  and  steadiest 
political  habit.  It  is  the  heritage  of  races  purged 
alike  of  hasty  barbaric  passions  and  of  patient  ser- 
vility to  rulers,  and  schooled  in  temperate  common 
counsel.  It  is  an  institution  of  political  noonday, 
not  of  the  half-light  of  political  dawn.  It  can  never 
be  made  to  sit  easily  or  safely  on  first  generations, 
but  strengthens  through  long  heredity.  It  is  poison 
to  the  infant,  but  tonic  to  the  man.  Monarchies 
may  be  made,  but  democracies  must  grow."  ^ 

Thus  far  we  have  been  considering  the  character, 
or  what  might  be  called  the  innate  dispositions,  of 
democracy.  We  may  now  ask  ourselves  what  prob- 
able effect  the  continued  or  intensified  operation  of 
these  tendencies  will  have  upon  the  future  govern- 
mental organization  of  the  State. 

The  pivotal  point  in  any  democratic  scheme  of 
government  is  the  legislative  body,  just  as,  in  abso- 
lute monarchy,  it  is  the  executive.  Based,  as  the 
representative  legislative  body  is,  upon  the  direct 
suffrages  of  the  people,  and  conscious   therefore  of 

1  "  Cliaracter  of  Democracy  in  the  United  States,"  published  ia 
An  Old  Master  and  Other  Essays,  p.  117. 


POLITICAL  CHARACTEKISTICS  AND  TENDENCIES      425 

deriving  its  power  from  their  mandate,  the  law- 
making body  wields  an  influence  that  dominates  the 
other  departments.  Its  very  size  gives  an  additional 
impetus  to  its  action.  It  is  a  psychological  fact  uni- 
versally observed  in  regard  to  all  bodies  of  men,  that 
they  may  be  moved  to  extremes  of  action,  and  are 
subject  to  waves  of  passion  to  which  their  members 
as  individuals  are  not  liable.  "Numerous  bodies," 
says  Hallam,  "  are  prone  to  excess,  both  from  the 
reciprocal  influences  of  their  passions,  and  the  con- 
sciousness of  irresponsibility ;  for  which  reasons  a 
democracy,  that  is,  the  absolute  government  of  the 
majority,  is  the  most  tyrannical  of  any,"  ^  Above 
all  other  "checks,"  therefore,  it  seems  necessary  that 
those  upon  the  legislature  should  be  fully  operative. 
Nowhere,  fortunately,  have  these  legislative  checks 
been  more  firmly  applied  than  in  the  United  States. 
Not  only  is  the  federal  Congress  restricted  as  to  its 
legislative  competence  by  the  constitution,  but  it  is 
divided  into  two  houses  of  nearly  equal  influence, 
and  an  executive  veto  superimposed  that  may  only 
be  overriden  by  a  two-thirds  vote.  As  we  have 
already  mentioned,  the  restrictions  upon  the  legis- 
latures of  the  individual  Commonwealths  have  been 
carried  to  an  even  greater  extent.  In  England,  the 
popular  legislative  branch  has  slowly  but  surely 
swept  away  all  restrictions  that  have  hindered  the 
free  exercise  of  its  powers,  and  now  stands  untram- 
melled save  for  the  virtually  extinct  royal  veto  and 
the   "  suspending "    power   of    the   upper   chamber. 

^  Constitutional  History  of  England,  Chap.  XYI. 


426  THE  NATUEE  OF  THE   STATE 

And  there  is  a  strong  movement  on  foot  to  do 
away  with  even  this  last- mentioned  curb  upon 
its  will,  slight  as  it  is.  In  the  English  constitu- 
tion is  thus  exhibited  the  consummated  tendency, 
apparent  in  all  popular  governments,  for  the  legis- 
lature, unless  adequately  checked,  to  gather  to  itself 
the  paramount  authority. 

That  which  it  is  common  to  regard  as  one  of  the 
most  efficient  checks  upon  the  legislature,  is  the 
necessity  for  its  members  to  return  at  frequent 
intervals  to  their  constituents  for  re-election.  In 
one  sense,  this  principle  of  short  tenure  of  office 
works  in  a  beneficial  manner ;  but  in  another  sense, 
and  an  important  one,  the  control  thus  given  an  elec- 
torate over  its  representatives  is  fraught  with  danger. 
It  means  that  the  independence  of  the  legislator  is 
lessened,  that  the  temptation  to  subordinate  the 
general  to  local  interests  is  increased,  and  that  the 
pressure  that  is  brought  to  bear  to  give  immediate 
and  complete  expression  to  a  popular  will  that 
may  be  ignorant  or  misinformed,  is  proportionately 
enhanced.  Half  a  century  ago,  the  keenest  critic 
of  our  institutions  observed  that  "  the  existence  of 
democracies  is  threatened  by  two  dangers,  viz.,  the 
complete  subjection  of  the  legislative  body  to  the 
caprices  of  the  electoral  body,  and  the  concentration 
of  all  the  powers  of  the  government  in  the  legislat- 
ive authority."  ^ 

Representative  government,  if  it  means  anything, 
should  mean  the  government  by  the  best,  or  at  least 

*  De  Tocqueville,  Democracy  in  America,  Am.  ed.  1849,  p.  165. 


POLITICAL  CHARACTERISTICS  AND  TENDENCIES      427 

by  those  better  than  the  general  run  of  electors, 
and  if  the  advantages  of  this  superiority  are  to  be 
obtained,  there  must  be  a  certain  degree  of  inde- 
pendence in  the  rulers  chosen  by  the  people,  and  a 
freedom  to  direct  public  matters  according  to  their 
own  best  judgment  and  not  according  to  the  unin- 
formed and  momentary  whims  of  their  constituents. 
At  the  same  time  a  legal  responsibility  for  malfea- 
sance of  office  will  protect  the  people  from  the  abuse 
of  public  functions. 

For  the  correction  of  the  various  evils  that  appear 
in  democratic  government  as  at  present  organized, 
various  plans  have  been  proposed,  among  which  the 
introduction  of  the  popular  "Initiative"  of  laws, 
the  Referendum,  and  Minority  Representation  are  the 
more  important.  It  will,  of  course,  be  foreign  to  such 
a  chapter  as  this  to  describe  in  detail  the  nature  of 
these  remedies,  much  less  to  enter  into  a  critical 
consideration  of  the  various  arguments  that  may  be 
made  for  or  against  their  adoption.  It  will  be 
sufficient  here  to  point  out  the  bearing  that  they 
have  upon  the  problems  that  we  have  above  sug- 
gested. 

First  of  all,  it  is  to  be  observed  that  the  introduc- 
tion of  the  popular  element  in  law-making  in  the 
form  of  the  Initiative  and  Referendum  will  still 
further  increase  that  influence  of  the  electorate  over 
the  legislature,  which,  as  we  have  seen,  is  attended 
by  some  disadvantages.  It  will  furthermore,  of 
necessity,  decrease  not  only  the  importance  of  the 
law-making  bodies  in  the  eyes  of  the  people,  but,  at 


428  THE   NATURE   OF  THE   STATE 

the  same  time,  and  what  is  probably  more  serious, 
greatly  decrease  in  the  minds  of  the  representatives 
themselves  the  sense  of  their  own  responsibility  for 
the  character  and  effect  of  the  measures  enacted.^ 
Aside  from  these  objections,  there  is,  of  course,  the 
question  whether  in  any  given  case  the  average 
elector  is  intellectually  qualified  to  judge  wisely 
regarding  the  measures  that  may  be  submitted  to 
him.  On  the  other  hand,  such  a  plan,  if  introduced, 
would,  it  would  seem,  have  a  great  influence  in  check- 
ing the  corruption,  log-rolling,  and  lobbying  that 
disgrace  the  halls  of  so  many  legislatures.  Its  ulti- 
mately educative  effect  upon  the  electorate  is  also  to 
be  noticed.  Still  another  advantage,  and  one  that 
seems  at  first  surprising,  is  that,  as  experience  shows 
in  those  cases  where  it  has  been  tried,  however 
vehemently  the  people  may  cry  out  for  radical  legis- 
lative action,  when  it  comes  to  the  point  of  formal 
action  upon  their  part,  they  are  conservative  rather 
than  otherwise,  and  often  refuse  their  consent  to 
liberal  measures  that  have  already  secured  the  ap- 
proval of  the  legislative  chambers.  This  apparent 
inconsistency  Sir  Henry  Maine  explains  as  follows : 
"  It  is  possible,"  says  he,  "  by  agitation  and  exhorta- 
tion, to  produce  in  the  mind  of  the  average  citizen  a 
vague  impression  that  he  desires  a  particular  change. 
But  when  the    agitation   has  settled  down  on  the 

^  It  has  also  been  objected  that  in  the  case  of  the  United  States, 
the  introduction  of  such  a  measure  would  tend  not  a  little  to  destroy 
that  formal  distinction  between  constitutional  and  ordinary  law,  now 
so  valuable  and  effective. 


POLITICAL  CIIARACTEEISTICS  AND   TENDENCIES      429 

dregs,  when  the  excitement  has  died  away,  when  the 
subject  has  been  threshed  out,  when  the  law  is  before 
him  with  all  its  detail,  he  is  sure  to  find  in  it  much 
that  is  likely  to  disturb  his  habits,  his  ideas,  his 
prejudices,  or  his  interests ;  and  so,  in  the  long  run, 
he  votes  '  No  '  to  every  proposal."  ^ 

If  we  examine  this  reasoning,  we  shall  find  that 
that  which  saves  the  Referendum  from  beino:  a  dan- 

o 

gerously  radical  instrument,  is  the  length  of  time 
required  for  its  operation.  Opportunity  is  given  for 
a  careful  second  thought  before  the  act  is  finally 
consummated,  just  as  the  "  suspensive  veto  "  of  the 
English  House  of  Lords  performs  the  same  service 
for  the  English  people. 

As  regards  "  Minority  Representation,"  it  cannot  but 
be  obvious  that  the  aims  to  the  attainment  of  which 
it  is  directed  are  eminently  proper  ones  ;  namely,  the 
reduction  of  the  severity  of  majority  tyranny,  the 
distribution  of  representation  according  to  naturally 
formed  industrial,  social,  and  political  groups  rather 
than  by  artificially  created  territorial  districts,  and 
the  consequent  encouragement  of  individual  inde- 
pendence in  politics.  Its  advocates  do  not  claim  for 
it  the  power  of  a  general  solvent  of  political  abuses, 
but  merely  that  its  introduction  will  tend  to  remedy 
the  evils  above  indicated,  and  thus  prepare  the  way 
for  remedial  action  in  other  directions.  To  our 
mind,  the  main  difficulty  connected  with  the  sub- 
ject is  the  devising  of  a  scheme  sufficiently  simple 
to  be   easily  understood    by  the  average  voter,  and 

^  Popular  Government,  p.  97. 


430  THE  NATURE   OF  THE    STATE 

from  the  operation  of  which  machine  trickery  may- 
be excluded.  And  these  are  difficulties  which  we 
are  inclined  to  believe  can  be  surmounted,  if  indeed 
they  have  not  already  been  overcome  in  more 
than  one  of  the  several  plans  that  its  advocates 
have  proposed.^ 

Viewing  popular  government  in  general,  it  will  be 
found  that  its  tasks  are  three  in  number.  (1)  To 
obtain  a  correct  expression  of  the  General  Will  or 
Public  Opinion.  (2)  To  afford  some  degree  of  cer- 
tainty that  such  General  Will  shall  be  an  intelligent 
one.  (3)  To  obtain  a  proper  execution  of  the  Gen- 
eral Will  when  so  formulated. 

As  regards  the  attainment  of  the  first  aim,  that  is 
the  office  of  the  press,  and  of  party  machinery  gen- 
erally, with  its  primaries,  caucuses,  conventions, 
platforms,  campaigns,  etc.  Regarding  the  second 
aim,  the  securing  of  an  intelligent  public  opinion, 
we  have  already  had  more  or  less  to  say.  The  point 
to  be  noticed  here  is,  that  it  is  only  in  respect  to 
these  first  two  aims  that  popularly  organized  govern- 
ment can  claim  a  superiority  over,  or  even  equality 
with,  other  and  more  autocratically  organized  political 
bodies.  In  the  more  absolute  forms  of  government 
there  is  afforded  neither  encouragement  nor  reason 
for  the  interest  of  the  general  mass  of  the  people  in 
public  affairs,  and  hence  for  the  formation  of  intelli- 
gent opinions  regarding  public  administration ;  nor  are 

1  For  a  description  of  the  various  systems  of  voting  proposed, 
toccether  with  a  veiy  complete  bibliopjraphy  of  the  subject,  see  Politi- 
cal Reform  hy  the  Representation  of  Minorities,  by  M.  N.  Forney,  pub- 
lished by  the  author  at  New  York.     1891. 


POLITICAL  CHARACTEKISTICS  AND  TENDENCIES      431 

there  provided  means  for  their  effective  expression, 
if  formulated.  Indeed,  if  the  autocratic  government 
be  tja-annical  as  well,  it  is  to  the  interest  of  the 
governing  that  the  formation  of  an  enlightened  gen- 
eral will  should  be  discouraged  and  prevented.  In 
popular  government,  on  the  other  hand,  not  only  are 
the  means  provided  for,  and  encouragement  given  to, 
a  wide  public  interest  in  political  matters,  but  the 
very  enjoyment  of  political  privileges  by  the  peo|)le 
furnishes  a  most  efficient  means  for  their  still  greater 
education. 

When,  however,  we  come  to  the  attainment  of  the 
third  aim  of  a  good  government,  of  which  we  have 
spoken,  the  conditions  are  nearly  reversed.  It  is  an 
undeniable  fact  that,  cceteris  paribus,  the  popularly 
organized  government  is  less  efficient  from  the  execu- 
tive or  administrative  standpoint  than  the  monarchical 
or  aristocratic  form.  The  aristocratic  government, 
especially  when  founded  upon  distinctions  of  office, 
furnishes  a  magistracy  that,  so  far  as  administrative 
talent  is  concerned,  is  far  superior  to  the  governing 
corps  that  is  commonly  selected  by  a  democratic 
society.  "The  governments  which  have  been  re- 
markable in  history  for  sustained  mental  ability  and 
vigor  in  the  conduct  of  affairs,"  says  Mill,  "have 
generally  been  aristocracies.  But  they  have  been 
without  any  exception  aristocracies  of  public  func- 
tionaries. The  ruling  bodies  have  been  so  narrow 
that  each  member,  or  at  least  each  influential  mem- 
ber, of  the  body  was  able  to  make,  and  did  make, 
public  business  an  active  profession,  and  the  princi- 


432  THE   NATUEE   OF   THE   STATE 

pal  occupation  of  his  liie."^  But  without  going 
further  into  the  advantages  of  such  an  aristocracy 
by  reason  of  the  skilled  bureaucracy  it  affords,  its 
attendant  defects  are  sufficiently  manifest.  Aside 
from  the  evils  ordinarily  ascribed  to  a  bureaucratic 
form  of  government  as  contrasted  with  the  elective 
form,  there  is  the  danger  —  nay,  almost  the  certainty 
—  that  the  leo-islation  that  will  be  had  will  be  class 
legislation ;  that  is,  favorable  to  the  class  in  power. 

Whether  the  monarchical  form  of  government  will 
produce  a  satisfactory  administration  of  public  affairs 
is  obviously  one  of  chance.  If  the  ruling  monarch 
be  capable  and  disinterested,  the  unity  of  control 
that  his  supreme  power  gives,  renders  possible  the 
initiation  and  vigorous  prosecution  of  matters  of 
public  concern  that  it  would  be  impossible  to  obtain 
in  a  government  constructed  with  various  devices 
mutually  restrictive  of  the  free  exercise  of  power. 
Thus  from  the  purely  administrative  standpoint, 
what  is  called  "  beneficent  absolutism  "  furnishes  the 
highest  possibilities  of  excellence.  On  the  other 
hand,  the  rulership  of  a  weak  or  selfish  monarch  — 
and  the  chances  are  that  he  will  be  such  —  leads  to 
equally  bad  results.  As  Bagehot  says,  "  the  benefits 
of  a  good  monarch  are  almost  invaluable,  but  the 
evils  of  a  bad  monarch  are  almost  irreparable."  ^ 

But  all  of  this  is  beside  the  question.  Whatever 
may  or  may  not  be  the  merits  and  demerits  of 
other  forms  of  government,  we  now  live  in  a  demo- 

^  Representative  Government,  Chap.  VI. 

2  English  Constitution,  Am.  ed.  (Appleton),  p.  156. 


POLITICAL  CHARACTERISTICS  AND  TENDENCIES      433 

cratic  age,  and,  as  already  said,  there  is  no  probability 
that  we  shall  speedily  emerge  from  it.  It  behooves 
us,  therefore,  to  study  well  the  defects  of  democracy, 
and  thus  to  prepare  ourselves,  so  far  as  possible,  for 
an  avoidance  of  the  dangers  to  v^^hich  they  lead. 
It  is  for  this  reason,  that  we  have  been  calling 
attention  to  the  fact  that  whatever  may  be  the 
educative  effect  and  the  disinterestedness  of  demo- 
cratic government,  it  is  inherently  weak  upon  the 
administrative  side.  It  is  therefore  imperative  if 
good  results  are  to  be  obtained  from  popular  gov- 
ernment the  peo]3le  should  be  enlightened,  and  that 
especial  attention  should  be  paid  to  the  administra- 
tive means  by  which  the  will  of  the  people  is  to  be 
made  known,  and  when  known,  put  into  operation. 
The  one  great  defect  of  democracy,  regarded  from 
the  standpoint  from  Avhich  we  have  now  been  con- 
sidering it,  is  its  lack  of  constructive  ability.  This 
point  is  especially  emphasized  by  Professor  Wilson  in 
the  essay  from  which  we  have  already  quoted  in  this 
chapter.  Concerning  the  forces  of  democracy,  he 
says :  "  There  is  little  in  them  of  constructive  effi- 
ciency. They  could  not  of  themselves  build  any 
government  at  all.  They  are  critical,  analytical, 
questioning,  quizzing  forces,  not  architectural,  not 
powers  that  devise  and  build."  ^  And  again,  speak- 
ing of  public  opinion,  he  says  :  "  It  is  judicial  merely, 
not  creative.  It  passes  judgment  or  gives  sanction, 
but  it  cannot  direct  or  suo:i2;est.  It  furnishes  stan- 
dards,  not  policies.     Questions   of   government   are 

1  Op.  cit.  p.  112. 
2f 


434  THE  NATURE  OF  THE  STATE 

infinitely  complex  questions,  and  no  multitude  can 
of  themselves  form  clear-cut,  comprehensive,  consist- 
ent conclusions  touching  them.  Yet  without  such 
conclusions,  without  single  and  prompt  purposes, 
government  cannot  be  carried  on.  Neither  legisla- 
tion nor  administration  can  be  dono  at  the  ballot- 
box."  1 

Professor  "Wilson  is  a  believer  in  the  superiority 
of  parliamentary  or  responsible  government  as  com- 
pared with  congressional  or  committee  government, 
and  holds  that  the  safest,  if  not  the  only,  remedy 
for  the  democratic  defects  which  he  has  above  enu- 
merated is  the  creation  of  more  conspicuous  personal 
leadership,  such  as  the  former  system  tends  to  pro- 
vide. He  does  not  suggest,  however,  any  means 
whereby  this  result,  desirable  as  it  may  be  admitted 
to  be,  is  to  be  obtained  save  by  the  introduction  of 
cabinet  government  in  this  country.  In  fact,  so  far 
as  we  ourselves  can  see,  there  is  no  other  method  by 
which  this  aim  can  be  directly  attained.  But  we  con- 
ceive that  even  were  it  practically  possible  to  get  the 
consent  of  our  people  to  such  an  innovation,  such 
a  scheme  would  open  the  way  to  several  of  the 
very  dangers  against  which  our  whole  constitu- 
tional scheme  is  intended  to  protect  us,  and  that, 
therefore,  the  price  that  we  would  have  to  pay  for 
such  a  benefit  would  be  entirely  too  dear  a  one. 
Responsible  cabinet  government  of  the  English 
type,  if  introduced  here,  would  necessarily  concen- 
trate power  in  the  lower  branch  of  Congress  and 

^  An  Old  Master  and  Other  Essays,  p.  130. 


POLITICAL  CHARACTEEISTICS  AND  TENDENCIES      435 

destroy  the  President's  veto,  and,  in  fact,  the  inde- 
pendence of  the  executive  power  generally,  as  dis- 
tinct from  the  legislature.  Furthermore,  there  is 
reason  to  believe  that  the  union  of  these  two  powers, 
together  with  their  concentration  in  a  single  chamber, 
would  render  the  influence  of  that  chamber  so  par- 
amount as  to  endanger  the  constitutional  indepen- 
dence of  the  federal  judiciary,  and  the  administrative 
autonomy  of  the  several  Commonwealths.^  We 
would  thus  be  led  to  the  tyranny  of  the  legislature, 
which,  as  has  been  before  said,  is  one  of  the  greatest 
evils  that  we  have  sought  to  avoid.^ 

To  our  mind,  the  only  feasible  way  in  which  the 
constructive  force  of  democracy  may  be  enhanced  by 
the  increase  of  true  personal  leadership  in  politics,  is 
indirectly  along  general  educative  lines,  whereby  the 
people  will  be  rendered  able  to  discern  the  true  quali- 
ties of  statesmanship,  and  inclined  to  select  for  their 
guides  and  representatives,  persons  possessing  them. 

^  The  arguments  upon  which  the  preceding  statements  are  based 
are  to  be  found  admirably  stated  by  A.  L.  Lowell  in  an  essay  entitled, 
"  Cabinet  Responsibility,"  published  in  his  Essaj/s  on  Government,  1889. 
See,  also,  on  this  subject.  Snow,  "  Defence  of  Congressional  Govern- 
ment" (Papers  of  the  Am.  Hist.  Assn., Yol.JII.)  ;  "Cabinet  Government 
in  the  United  States  "  (Annals  of  the  Am.  Acad.,  No.  57)  ;  "  Shall  we 
Americanize  our  Institutions  "  (Nineteenth  Century,  December,  1890)  ; 
Biidgwick's,  Elements  of  Politics, Cha.^.'SSKll.;  Wilson,  Congressional  Gov- 
ernment and  Overland  Rev.,  January,  1884  ;  and  Bageliot,  English  Consti- 
tution. Relative  to  the  question  of  the  independence  of  the  judiciary,  it 
might  be  mentioned  that  Professor  Wilson,  in  the  essay  from  which  we 
have  quoted,  himself  shows  the  weakness  of  our  federal  judiciary  even  as 
it  is,  and  compares  its  position  to  that  of  the  House  of  Lords  in  England. 

2  Says  Jefferson :  "  The  executive  in  our  government  is  not  the 
sole,  it  is  scarcely  the  principal,  object  of  jealousy.  The  tyranny  of 
the  legislature  is  the  most  formidable  dread  at  present,  and  wUl  be 
for  years." 


436  THE   NATURE   OF  THE   STATE 

Finally,  in  conclusion  of  this  chapter,  already  too 
long  extended,  it  is  to  be  said  that  many  of  the  dej&- 
ciencies  of  representative  government  may  be  largely 
corrected  by  improvements  in  the  procedure  of  our 
legislative  bodies.  Aside  from  the  character  of  its 
members,  which,  of  course,  depends  upon  the  elector- 
ate, there  are  two  great  evils  that  may  overtake  a 
legislative  body.  In  our  modern  complex  age,  it 
may  become  overburdened  with  business ;  and  it 
may  attempt  the  performance  of  other  than  its 
proper  deliberative  functions.  As  regards  the  first 
evil,  from  which  our  Congress  is  already  suffering, 
despite  its  sixty  or  more  sub-committees,  relief  is 
possible ;  first,  through  the  reference  of  particular 
subjects,  such  as  contested  elections,  etc.,  to  out- 
side judicial  bodies  for  determination,  reserving 
for  itself  only  the  final  ratification  of  the  decis- 
ions reached ;  and,  secondly,  the  establishment  of  a 
special  procedure  for  private  bill  legislation,  as  has 
been  done  in  England,  whereby  not  only  is  the  intro- 
duction of  improper  and  unnecessary  private  bills 
discouraged,  but  provision  made  for  the  determina- 
tion outside  of  the  legislative  halls  of  the  facts  in- 
volved and  the  interests  effected.  The  introduction 
of  this  one  reform  would  enormously  lighten  the 
present  burdens  of  Congress.  As  has  been  noticed 
in  a  preceding  note,  of  the  2190  acts  of  the  Fifty-first 
Congress,  1579  were  of  a  private  character. 

The  second  danger,  that  of  the  legislature  stepping 
beyond  its  proper  deliberative  sphere,  is  directly  con- 
nected with  the  first  in  that  its  correction  will  neces- 


POLITICAL   CHARACTERISTICS  AND  TENDENCIES      437 

sarily  lessen  the  seriousness  of  the  first.  As  Mill  so 
clearly  pointed  out  in  his  Essay  on  Representative 
Government,  and  as  history  has  since  so  abundantly 
demonstrated,  a  body  of  men  of  any  considerable  size 
is  by  the  very  fact  of  its  size  disqualified  from  efficient 
administrative  action.  A  sufficient  unity  and  concert 
of  action  and  a  definiteness  and  stability  of  policy  for 
such  work  cannot  be  obtained.  There  is  a  radical 
difference  between  the  control,  and  the  actual  perform- 
ance, of  the  business  of  government.  The  repre- 
sentative legislative  body  should  restrict  its  functions 
to  those  of  discussion,  oversight,  and  determination. 
It  should  see  that  the  proper  activities  of  govern- 
ment are  provided  for  and  properly  distributed,  and 
should  keep  sufficient  watch  to  see  that  their  actual 
performance  is  properly  done ;  but  it  should  not 
attempt  to  perform  them  itself,  or,  what  is  practi- 
cally the  same  thing,  strive  to  determine  in  such 
detail  the  manner  of  their  performance  as  to  deprive 
the  proper  administrative  officers  of  all  responsibility 
and  powers  of  discretion.  The  one  great  evil  from 
which  the  present  French  government  is  suffering, 
is  the  extent  to  which  its  legislature  interferes  and 
meddles  with  administrative  measures,  introducing: 
into  them  thereby  its  own  fickleness  and  lack  of  tech- 
nical skill.  In  our  own  country,  also,  we  are  not  free 
from  this  error. 

A  third  means,  to  which  Mill  calls  especial  atten- 
tion, by  which  the  legislative  efficiency  of  large  bodies 
may  be  increased,  is  the  establishment  of  a  smaller 
inside  body  composed  of  experienced  members  whose 


438  THE  NATURE   OE   THE   STATE 

duty  would  be  tlie  ]}YOi^ev  frcmimg  of  laws.  For  this 
work  technical  legal  skill  and  accuracy  are  demanded. 
The  creation  of  such  a  body  would  therefore  not  only 
lighten  the  labors  but  increase  the  value  of  the 
product  of  the  legislature.  The  larger  body  would 
of  course  still  retain  the  entire  power  of  enacting 
law.  Only  the  formal  and  technical  work  would  be 
given  to  the  smaller  committee.  Thus  in  large 
measure  this  law-framing  committee  would  bear  the 
same  relation  to  the  whole  assembly,  that  such 
assembly  bears  to  the  electorate  in  countries  where 
the  Referendum  obtains. 

Fourthly,  and  finally,  an  almost  unlimited  relief  to 
overburdened  national  legislatures  is  possible  through 
a  further  decentralization  of  functions.  The  extent 
to  which  this  may  be  carried,  varies  in  different  cases, 
and  depends  upon  conditions  that  we  do  not  need 
here  to  consider. 

In  concluding  these  reflections  upon  the  democratic 
State,  it  may  appear  that  we  have  been  able  to  dis- 
cover only  defects  and  difficulties,  and  that  conse- 
quently only  the  most  pessimistic  predictions  may  be 
made  regarding  its  future.  But  such  is  not  the  case. 
We  have  by  no  means  a  low  opinion  of  the  merits  of 
popular  government.  On  the  contrary,  the  manly 
self-control  which  is  taught  and  practised  in  this 
political  form  stamps  it  as  the  best  type  that  de- 
veloping civilization  has  thus  far  disclosed,  and  in 
the  continued  existence  of  democratic  control  we  see 
the  highest  hopes  of  human  progress.  At  the  same 
time  we  are  not  blind  to  its  defects,  and  these  we 


POLITICAL  CHARACTERISTICS  AND  TENDENCIES      439 

have  emphasized  because  of  the  very  general  and 
indiscrimmate  laudation  that  popular  government 
has  received.  The  intention  has  been  to  show  that  a 
democracy  is  by  no  means  a  simple  government,  nor 
one  easily  administered,  but  rather  the  reverse  —  that 
it  is  one  which  presupposes  a  high  morality,  an  ad- 
vanced state  of  education,  a  great  degree  of  self- 
control,  a  considerable  amount  of  material  and  social 
equality,  and,  above  all,  the  active  and  disinterested 
participation  of  the  wisest  and  best  of  its  citizens  in 
its  political  life. 


INDEX 


Adams,  H.  C,  State  in  Relation  to  Bentham,    Jeremy,     Fragment    on 


Industrial  Action,  cited,  328. 

Adams,  John,  quoted,  400  n. 

Aims  of  the  State,  309  et  seq. 

Alienation  of  Sovereignty,  theories 
of,  58-61. 

Althusius,  Johannes,  Politica  metho- 
^    dice  digesta,  cited,  62,  278,  396. 

Ambrose,  Saint,  quoted,  45. 

Amendment  of  Constitutions,  214- 
19. 

Analytical  Jurisprudence,  69,  160- 
80. 

Anarchistic  School,  318-20. 

Aquinas,  Thomas,  views  of,  regard- 
ing natural  law,  104-5 ;  De  regi- 
mine  principium,  cited,  46,  47. 

Aristotle,  views  of,  regarding  natural 
law,  96  ;  cited,  34. 

Aristocracy,  361-72. 

Austin,  John,  quoted,  23,  69,  171, 
256,  282,  283,  353  n.  ;  definition  of 
law,  162-5  ;  definition  of  sovereign 
State,  182  ;  position  in  regard  to 
constitutional  law  criticLscd,  204- 
9 ;  views  of,  regarding  location  of 
Sovereignty  criticised,  293-5. 

Authority  and  Liberty,  struggle  be- 
tween, 312. 

Bagehot,  Walter,  Physics  and 
Politics,  quoted,  311  ;  English 
Constitution,  quoted,  432. 

Baudrillart,  Jean  Bodin  et  Son 
Temps,  cited,  186  n. 


Government,  quoted,  21,  69, 
361  n. 

Bills  of  Rights,  character  of,  87. 

Blackstone,  Sir  William,  Commenta- 
ries on  Law,  quoted,  151,  181. 

Bliss,  Prof.  Philemon,  Of  Sover- 
eignty, quoted,  240  ;  cited,  282. 

Bluntschli,  J.  K.,  Theory  of  the 
State,  quoted,  3  n.,  10,  13  n.,  .33, 
370,  408  ;  cited,  379 ;  Geschichte 
der  neueren  Staatswissenschaft, 
quoted,  137,  158;  Staatsicorter- 
buch,  quoted,  290  n.  ;  Gesammelte 
kleine  Schriften,  quoted,  389  n. ; 
classification  of  governments,  378. 

Bodin,  de  la  liepublique,  cited,  62, 
392  ;  definition  of  State  and  Sov- 
ereignty, 185-6. 

Body  Politic,  distinguished  from  so- 
ciety, 2. 

Borgeaud,  Charles,  Adoption  and 
Amendment  of  Constitution  in 
Europe  and  America,  cited,  88  n., 
210  n. 

Bossuet,  Politique  tiree,  cited,  50. 

Brie,  Theorie  der  Staatcnverbindun- 
gen,  quoted,  15 ;  cited,  194,  234. 

Brownson,  The  American  Pepublic, 
quoted,  238,  242. 

Buchanan,  Be  jure  regni  apud  Sco- 
tus,  cited,  279. 

Bundesstaat,  see  Federal  State. 

Burgess,  Prof.  John,  Political  Science 
and   Constitutional  Laic,  quoted, 


441 


442 


INDEX 


4,  13  n.,  IG,  183,  378;  art.  The 
American  Commonwealth,  quoted, 
251  n. ;  review  of  Laband's  Staats- 
recht,  quoted,  245;  distinction 
between  "State"  and  "Govern- 
ment" criticised,  206  n.  ;  classifi- 
cation of  governments,  276-7. 

Cabinet  Government,  434-5. 

Cairnes,  Prof.,  quoted,  37. 

Calhoun,  John  C,  cited,  239  ;  quoted, 
241. 

Calvin,  John,  cited,  48. 

Carpenter,  Edward,  Civilization :  Its 
Cause  and  Cure,  cited,  97  n. 

Caucus,  415. 

Checks  and  balances,  in  modern 
constitutional  governments,  399- 
403. 

Christianity,  influence  of,  on  politi- 
cal theories,  100-1. 

Church  and  State,  45-50. 

Cicero,  cited,  45. 

Citizenship,  distinct  from  mere  indi- 
viduality, 125-6. 

Civil  Law,  distinguished  from  natu- 
ral law,  by  Ilobbes,  69-71. 

Clark,  Practical  Jwisprtidence, 
quoted,  23 ;  cited,  152  n.,  282. 

Cockburn,  Lord  Chief  Justice, 
quoted,  202. 

Commonwealth,  used  as  designating 
members  of  a  Eederal  State,  245 
et  seq. 

Compact,  see  Contract. 

Competition,  province  of,  in  the 
development  of  humanity,  327- 
37. 

Composite  State,  231  et  seq. 

Confederacy  and  Federal  State  dis- 
tinguished, 253  et  seq.      See  also 
Staatenhund. 
Confederate  States,  de  facto  position 

of,  227-9. 
Constitution,  adoption  of,  not  a  crea- 
tive act,  130-2  ;  power  of  amend- 
ment of,  by  a  State,  214-19. 


Constitutional  Government,  charac- 
ter of,  396  et  seq. 

Constitutional  Law,  province  of,  141, 
208-9  ;  not  a  limitation  upon  Sov- 
ereignty, 204-9. 

Contract  Theory,  history  of,  55-88  ; 
governmental  contract,  55-61 ;  so- 
cial or  political  contract,  61-88 ; 
Spinoza's  views  concerning,  68-9  ; 
Hobbes',  64-71  ;  Locke's,  74-9  ; 
Eousseau's,  79-84 ;  in  America 
and  Germany,  85-8 ;  legal  and 
historical  invalidity  of,  115-18. 

Contract,  movement  of  societies  from 
status  to,  117 ;  government  not 
founded  on  a,  300. 

Conventions  of  the  constitution 
distinguished  from  the  laws  of, 
207-8. 

Cooley,  Thomas  M.,  Principles  of 
Constitutional  Law,  quoted,  130  n., 
214,  290  u. ;  Torts,  quoted,  151. 

Custom,  province  of,  in  creation  of 
law,  144-7 ;  character  of,  per 
Savigny,  167. 

Cynics,  views  of,  regarding  natural 
law,  97. 

Dahn,  Felix,  quoted,  44. 

Dante,  De  Monarchia,  cited,  46. 

Darwinianism  and  Politics,  328-37. 

Delegation  or  Alienation  of  Sover- 
eignty, theories  of,  58-61. 

Democracy,  the  primitive  form  of 
government  per  Hobbes,  71  ;  char- 
acter of,  361-72,  374,  396-7,  409 
et  seq. 

Dewey,  Prof.  John,  quoted,  175, 
284  n.,  297. 

Dicey,  Law  of  the  Constitution, 
cited,  208  n.,  292  n.  ;  quoted,  207, 
211  n.,  220,295  n. 

Divine  Theory,  of  origin  and  justifi- 
cation of  the  State,  42-53 ;  history 
of,  42-50  ;  criticism  of,  50-3. 

Donislhorpe,  The  Limits  of  Individ- 
ualism, quoted,  320. 


INDEX 


443 


Equity,  necessity  of,  in  development 

of  law,  418. 
Essential  Functions  of  the  State,  310 

et  seq. 

Family,  theories  of  evolution  of,  and 
relation  of,  to  the  State,  20-4. 

Federal  State,  see  Composite  State  ; 
distinguished  from  Confederacy, 
252  et  seq. 

Feudalism,  contractual  basis  of,  57-8. 

Fichte,  cited,  86. 

Fictions,  influence  of,  in  creation  of 
law,  150-1. 

Filmer,  Fatriarcha,  cited,  50. 

Fisher,  Prof.  G.  P.,  cited,  88  n. 

Force  Theory  of  origin  of  the  State, 
41-2 ;  persistence  of  force  in  the 
State,  341. 

Forney,  M.  N.,  Political  Beform  by 
the  Bepresentation  of  Minorities, 
cited,  431  n. 

Freedom,  created  by  law,  110  ;  politi- 
cal and  individual  freedom  dis- 
tinguished, 312. 

Freeman,  E.  A.,  Comparative  Pol- 
itics, cited,  44  n. ;  Federal  Gov- 
ernment, cited,  234  n.  ;  Essays, 
quoted,  321  n. 

Gareis,  AUgemeines  Staatsrecht, 
quoted,  193  ;  his  classification  of 
governments,  374-6. 

General  Will,  123  ;  Rousseau's  con- 
ception of,  80-4 ;  criticised,  288 
et  seq. 

General  Welfare,  aim  of  the  State, 
339. 

Giddings,  T.  H.,  The  Theory  of 
Sociology,  quoted,  2. 

Gierke,  Otto,  Johannes  Althnsius 
unci  die  Enticicklung  der  natur- 
rechtUchen  Staatstheorien,  cited, 
48 n.,  59  n.,  96  n.,  277  n. 

Giles  of  Rome,  cited,  46. 

Government,  Rousseau's  definition 
of,     79-80 ;     distinguished     from 


State,  8 ;  confounded  with  State 
by  Ilobbes,  73-4. 

Governments,  de  facto  and  de  jure, 
81,  224  et  seq.  ;  per  Rousseau,  81. 

Governments,  analysis  of  functions 
of,  343  et  seq.  ;  historical  sequence 
of  forms  of,  350-60  ;  classification 
of,  350  et  seq.  ;  quantum  of  power 
of  all,  the  same,  352  ;  Aristotelian 
classification  of,  359  et  seq.;  con- 
stitutional, 354  ;  corrupt,  361  n. ; 
free  and  despotic,  353-5 ;  classi- 
fication of  Gareis,  374-6  ;  of  Bur- 
gess, 376-8. 

Governmental  Contract,  55-61. 

Greeks,  political  theories  of,  3.3-5, 
43-4 ;  views  of,  regarding  natural 
law,  96-7. 

Green,  T.  H.,  Principles  of  Political 
Obligation,  quoted,  53, 107,  123  n., 
224. 

Grotius,  Hugo,  cited,  50,  58,  59,  63, 
392 ;  views  of,  regarding  natural 
law,  101 ;  influence  of,  upon  inter- 
national law,  102-3. 

Gunton,  Principles  of  Social  Eco- 
nomics, cited,  37  n. 

Halleck,  International  Law,  cited, 
239. 

Haller,  Bestanration  der  Staatsicis- 
senschaft,  cited,  50  n. 

Hallam,  Middle  Ages,  cited,  57 ; 
quoted,  424. 

Hanke,  E.,  Eine  Studie  iiber  den 
Begriff  der  Souverainetdt,  cited, 
186  n. 

Hart,  Prof.  A.  B.,  Federal  Govern- 
ment, cited,  234  n. 

Hearn,  Government  of  England, 
quoted,  212  n. 

Helie,  Art.  Nation,  quoted,  9. 

Hildebrand,  cited,  46. 

Ilincmar,  cited,  46. 

Hobbes,  Leviathan,  quoted,  107,  354  ; 
cited,  50,  63,  392,  394  ;  system  of, 
64-74;  compared  with  Locke  and 


444 


INDEX 


Rousseau,  84-5 ;  criticised,  73-4, 
125 ;  views  of,  regarding  natural 
law,  89,  101. 

Holland,  T.  E.,  Elements  of  Juris- 
prudence, quoted,  3,  108  n.,  138, 
161,  172 ;  position  in  regard  to 
customary  law  criticised,  173-5. 

Hooker,  Kicbard,  Ecclesiastical  Pol- 
ity, cited,  62. 

Hotman,  Franco-Gallia,  cited,  278. 

Humboldt,  Wilhelm  v.,  Ideen  zu  einem 
Versuch  die  Grenzen  der  Wirksam- 
keit  des  Staats  zu  bestimmen, 
quoted,  323. 

Hume,  Essays,  quoted,  127,  321. 

Hurd,  The  Union-State,  quoted,  224 ; 
cited,  274. 

Huxley,  Essays,  quoted,  92,  93,  318, 
333  n.,  .334. 

Idiocract,  378. 

Idolocracy,  378. 

Ihering,  Der  Zweck  im  Becht,  quoted, 
4  ;  cited,  168. 

Individualism,  the  outcome  of  "nat- 
ural rights,"  94 ;  postulates  of, 
320-36. 

Initiative,  and  Referendum,  427-30. 

Innate  Rights,  181. 

Instinct,  identified  with  natural  law, 
92. 

Instinctive  Theory,  of  origin  of  State, 
32-8. 

Internationality,  404-10. 

International  law,  103  ;  not  a  limita- 
tion upon  Sovereignty,  198-204. 

Jameson,  Judge  J.  A.,  The  Constitu- 
tional Convention,  cited,  282  ;  doc- 
trine of  location  of  Sovereignty 
criticised,  290  n. 

Janet,  Histoire  de  la  Science  Poli- 
tique, cited,  47  n.,  96  ;  quoted,  321. 

Jefferson,  Thomas,  cited,  87  ;  quoted, 
435  n. 

Jellinek,  Die  Lehre  von  den  Staaten- 
verbindungen,    quoted,    119,    193, 


233,  238  ;  Gesetz  und  Verord- 
nung,  cited,  135-6 ;  quoted,  198, 
212  n.  ;  position  regarding  non- 
sovereign  States  criticised,  246. 

Jesuits,  political  theories  of,  58. 

Jurisprudence,  historical  school  of, 
165 ;  analytical  school  of,  160-80. 

Kant,  cited,  86 ;  views  of,  regarding 

natural  law,  104. 
Kidd,  Benj.,  Social  Evolution,  cited, 

419. 

Laband,  Dr.  Paul,  Das  Staatsrecht 
des  deutschen  Peiches,  quoted, 
210  n.  ;  cited,  245. 

Lalor,  Encyclopaedia  of  Political  Sci- 
ence, quoted,  9  n.,  12  n. 

Languet,  Vindicice  contra  tyrannos, 
cited,  278, 

Lasson,  System  der  Pechtsphilosophie, 
cited,  4,  96  n.,  168. 

Laveleye,  Emile  de,  Le  Gouvernement 
dans  la  Democratic,  quoted,  14  n. ; 
cited,  418. 

Law,  Hobbes'  definition  of,  69-71  ; 
public  and  private  distinguished, 
138  ;  relation  of,  to  morality,  113- 
14 ;  nature  of,  142-80 ;  classification 
of,  142  ;  growth  of,  144-59  ;  influ- 
ence of  custom  on,  144-7  ;  of  fic- 
tions on,  150-1 ;  different  kinds  of, 
161  ;  Austin's  definition  of,  162  ; 
distinction  between  constitutional 
and  ordinary,  one  of  form  only, 
209-15  ;  see  also  Natural  Law. 

Legislation,  growth  of,  154-59 ;  efiS- 
ciency  of,  155  ;  difliculties  of,  in 
modern  State,  410  et  seq. ;  legis- 
lative power,  303-8. 

Lewis,  G.  C,  Use  and  Abuse  of 
Political  Terms,  cited,  364  n.,  362, 
308,  372. 

Lex  Sterna,  101. 

Liberty,  definition  of,  126-7,  183; 
struggle  between,  and  authority, 
312-10. 


INDEX 


445 


Life,  power  of  State  over,  128  n. 

Lightwood,  J.  M.,  The  Nature  of 
Positive  Laio,  cited,  160,  282. 

Lincoln,  Abraham,  quoted,  254, 255  n. 

Location  of  Sovereignty,  275  et  seq.  ; 
Austin's  views  regarding,  280. 

Locke,  John,  Two  Treatises  of  Gov- 
ernment, cited,  50,  57,  63 ;  system 
of,  74-9, 298;  compared  with  Hobbes 
and  Rousseau,  84-5 ;  criticism  of 
views  of,  76-9,  125 ;  views  of, 
regarding  natural  law,  80. 

Lowell,  A.  L.,  Essays  on  Govern- 
ment, cited,  282,  435  n. 

Luther,  Martin,  cited,  48. 

Maokey,  ed..  Plea  for  Liberty.,  cited, 
320  n. 

McKee,  T.  H.,  Manual  of  Congres- 
sional Practice,  cited,  417  n. 

Markby,  Justice,  Elements  of  Lato, 
quoted,  177  n. 

Machiavelli,  political  views  of,  102, 
392. 

Madison,  James,  TJie  Federalist, 
quoted,  260. 

Maine,  Sir  Henry,  Ancient  Laio,  cited, 
19,  96  n.,  99  n. ;  quoted,  57,  117, 
189  ;  Early  History  of  Institutions, 
cited,  24  n. ;  criticism  of  Austin 
criticised,  168 ;  views  regarding 
nature  of  International  Law,  202  ; 
Popular  Government,  quoted,  412, 
429. 

Majority,  tyranny  of,  416,  425. 

Marsilius,  of  Padua,  cited,  46,  279  n. 

Mechanism,  State  not  a,  132-4. 

Melanchthon,  cited,  45,  48. 

Mill,  J.  S.,  Bepresentative  Govern- 
ment, quoted,  12,  432  ;  cited,  341, 
437. 

Minorities,  rights  of,  410. 

Minority  Representation,  429. 

Mohl,  von,  classification  of  govern- 
ments of,  378. 

Monarchomachi,  views  of,  62,  278. 

Monarchy,  361-72. 


Montesquieu,  Spirit  of  Laics,  cited, 

23 ;   classification  of  governments 

of,  372  n. 
Morley,    John,    Life    of   Rousseau, 

cited,  39. 
Moral  Personality,  distinguished  from 

legal,  139-40. 
Moral  Organism,  State  not  a,  38. 
Moral    Rights,    distinguished    from 

legal,  113  n. 
Morality,  absence  of,  in  "State  of 

Nature,"  109-15. 
Mulford,  The  Nation,  cited,  50. 

Nation,  definition  of,  and  distin- 
guished from  People,  9-13. 

Nationality,  sentiment  of,  121  ;  de- 
mand for  political  unity,  not  a 
necessary  consequence  of,  122. 

Natural  Law,  48,  49  ;  criticism  of 
theories  of,  103-18;  propriety  of 
expression,  114-15 ;  a  necessary 
postulate  to  contract  theory,  89 ; 
Locke's  views  regarding,  89  ;  Rous- 
seau's, 89  ;  Hobbes',  89  ;  Greeks', 
96-7;  Cynics',  97;  Sopliists',  96; 
Aristotle's,  97  ;  Plato's,  97  ;  Stoics', 
98  ;  Spinoza's,  94  ;  distinguished 
from  civil  law  by  Hobbes,  69-71. 

Natura  naturans,  91-2. 

Natura  naturata,  91-2. 

Natural  Organism,  State  not  a,  35-8. 

Natural  Rights,  93  ;  see  Natural  Law. 

Natural  Theory  of  origin  of  State, 
32-8.  [337  et  seq. 

Non-essential  Functions  of  the  State, 

Non-sovereign  State,  a,  impossible, 
244  et  seq. 

Nullification,  right  of,  265. 

Occam,  Octo  questiones  super  potes- 

tate   summi   pontificis,   cited,   46, 

279  n. 
Origin  of  the  State,  Theories  of,  18 

et  seq. ;  true  origin  of  the  State, 

119  et  seq. 
Organism,  State  not  an,  35-8. 


446 


INDEX 


Paley,  Moral  and  Political  Philos- 
ophy, cited,  354  n. 

Patriarchal  Theory,  19-20. 

People,  a,  the  creator  of  the  State, 
129  ;  definition  of,  9-13. 

Person,  distinguished  from  thing,  31. 

Personality  of  the  State,  134-41, 
393-6  ;  legal  and  moral  personality 
distinguished,  139-40. 

Personal  Union,  237-8. 

Plato,  views  of,  regarding  natural 
law,  97. 

Pollock,  Sir  P.,  History  of  Politics, 
quoted,  188. 

Pomeroy,  Cunstitutional  Law,  quoted, 
202  n. 

Popular  Government,  difficulties  of, 
410  et  seq. 

Popular  Sovereignty,  non-legal  char- 
acter of,  282  et  seq.;  Rousseau's 
conception  of,  criticised,  286  et  seq. 

Political  Science,  province  and  divi- 
sions of,  4-5. 

Portalis,  Count,  quoted,  157. 

Positive  Law,  see  Law. 

Public  Law,  distinguished  from  pri- 
vate, 138. 

Public  Opinion,  non-legal  character 
of,  285  et  seq. 

Pufendorf,  political  views  of,  58, 
63  n.,  392. 

Pulzsky,  Theory  of  Law  and  Civil 
Society,  quoted,  20  n.,  98;  cited, 
105  n. 

Queen  v.  Ketn,  case  of,  cited,  201-2. 

Realunion,  character  of,  237-8. 

licferendum,  427-30. 

Reformation,  Protestant,  influence 
of,  on  political  theories,  48. 

Rcnan,  Ern.st,  quoted,  11. 

Republic,  definitions  of  a,  372,  375. 

Representative  Government,  con- 
demned by  Rousseau,  81. 

Rights,  see  Natural  Rights,  Natural 
Law,  Legal  Rights,  etc. 


Ritchie,  Prof.  D.  G.,  Art.  The  Social 
Contract  Theory,  cited,  56  n., 
57  n. ;  Natural  Bights,  quoted, 
91, 99, 418  ;  cited,  96  n.,  106,  324  n. ; 
Art.  The  Nature  of  Sovereignty, 
cited,  290 ;  Darwinism  and  Poli- 
tics, cited,  330  n.  ;  quoted,  333, 
334. 

Rohmer,  classification  of  govern- 
ments of,  379. 

Romans,  political  theories  of,  44-5. 

Roman  Law,  natural  law  in,  99- 
100. 

Robinson,  E.  V.,  Art.  The  Nature  oj 
the  Federal  State,  cited,  222, 

Roscher,  Politik,  cited,  358  n.,  372. 

'Rousseau,  political  theories  of,  41, 
60,  63,  79-84,  89,  315  ;  compared 
with  Hobbes  and  Locke,  84-5 ;  crit- 

\    icised,  125  ;  conception  of  popular 

\  sovereignty,  287  et  seq. 

Ruttiman,  Das  Nordamerikanische 
Bitndesstaat,  cited,  239. 

Salmond,  J.  W.,  Art.  Natural  Law, 

cited,  95  n.,  113  n. 
Sarwey,  Dr.    O.,   AUgemeines    Ver- 

vmltungsrecht,  cited,  9  n. 
Savigny,    System   des   heutigen   ro- 

mischen  Bechtes,  quoted,  167. 
Schleiermacher,  Ueher  die  Begriffe  der 

verschiedenen  Slaatsformen,  cited, 

367. 
Scholastics  and  Natural  Law,  101. 
Schulze,    Prenssisches    Staatsrecht, 

quoted,  212  n. 
Sidgwick,  Prof.  Henry,  Elements  of 

Politics,  quoted,  322,  324. 
Simon,  M.  Jules,  quoted,  322. 
Small,  A.  W.,  Art.  The  Beginnings 

of  American  Nationality,  quoted, 

271. 
Social    Contract,   The,   61-88.      See 

Contract. 
Socialistic  and  Non-socialistic  Func- 
tions of  the  State,  distinguished, 

340-50. 


INDEX 


447 


Society  and  body  politic  distin- 
guished, 2  ;  and  animal  communi- 
ties, 2. 

Sociology,  province  of,  1. 

Sophists,  theories  of,  regarding  natu- 
ral law,  90. 

Sovereignty,  nature  of,  per  Ilobbes, 
Tlp^  absolute  character  of,  per 
Rousseau,  82  ;  nature  of,  181-230  ; 
history  of  theories  of,  185-92 ; 
Jellinek's  definition  of,_J.93-;  Ga- 
reis',  laS^  Erie's,  194  ;  not  a  sum 
of  powers,  194-5  ;  represents  the 
supreme  will  of  the  State,  195  ;  is 
necessarily  a  unity,  195 ;  denotes 
independence,  19G  ;  not  limited  by 
so-called  international  law,  198- 
204  ;  not  limited  by  constitutional 
law,  204-9  ;  may  not  be  alienated 
by  the  State,  though  its  exercise 
may  be  transferred,  220-1 ;  not 
acquired  by  treaty,  222-0 ;  essen- 
tial to  a  State,  244  et  seq. ;  location 
of,  in  body  politic,  275  et  seq.; 
history  of  theories  of  location  of, 
276-9 ;  distinguished  from  force, 
282  et  seq. ;  distinguished  from 
public  opinion,  282  ;  located  in  the 
law-making  organs  of  government, 
302  et  seq.  ;  development  of  idea 
of,  388-93. 

Speaker,  in  American  Congress, 
power  of,  415. 

Spencer,  Herbert,  political  views  of, 
criticised,  36,  97,  321,  329  et  seq. 

Spinoza,  political  theories  of,  68,  09, 
94,  108,  20.3-4,  225,  392. 

Stantenhund  and  Bundesstaat,  dis- 
tinguished, 338  et  seq.  See  Con- 
federacy. 

Staatevstaat,  235. 

Staatsklco,  14-17.     See  State. 

Stahl,  Die  Fhilosophie  des  liechts, 
cited,  50  n. 

State,  preliminary  definition  of,  3 ; 
definition  of  Holland,  3 ;  of  Iher- 
ing,  4 ;  of  Lasson,  4 ;  of  Burgess, 


4  ;  and  Government  distinguished, 
8  ;  abstract  conception  of,  14-17  ; 
theories  of  origin  and  justification 
of,  18  et  seq. ;  natural  or  instinctive 
theory,  32-8 ;  theories  of  Greeks, 
33-5  ;  number  of  persons  required 
to  form  a,  '22-4 ;  development  of, 
compared  vrith  living  beings,  27- 
30  ;  not  a  natural  organism,  35-8  ; 
not  a  moral  organism,  38 ;  utilita- 
rian justification  of,  38-41  ;  force 
theory  of,  41-2 ;  State  and  Church, 
45-50  ;  contract  theory  of  origin 
of,  54  et  seq.  ;  per  Ilobbes,  64-71  ; 
per  Locke,  74-9 ;  per  Rousseau, 
79-85 ;  legal  absolutism  of,  per 
Hobbes,  71-3  ;  confounded  with 
Government  by  Hobbes,  73-4 ; 
true  origin  of,  1 19  et  seq. ;  subjec- 
tive element  in,  119-21 ;  as  to 
particular  individual,  based  on 
necessity  and  force,  127  ;  utilita- 
rian justification  of,  126 ;  not  arti- 
ficial, 132-4 ;  personality  of,  134-41 ; 
power  of,  sovereignty  of,  181-230; 
cannot  alienate  its  sovereignty, 
220-1  ;  all  law  a  formal  limitation 
upon,  209-10 ;  de  facto  States,  224 
et  seq. ;  composite,  232  et  seq. ; 
name  not  applicable  to  a  non- 
sovereign  body,  244  et  seq.  ;  aims*.>^ 
of,  309  et  seq.  ;  essential  functions  " 
of,  310  ;  whether  a  means  or  an 
end,  316-18 ;  non-essential  func- 
tions of,  336  et  seq.;  development 
of  abstract  idea  of,  385  et  seq.  ; 
personality  of,  393-6  ;  character  of 
modem  State,  395  et  seq. ;  checks 
and  balances  in  modern,  399-403  et 
seq. ;  World-State,  407-10. 

State  of  Nature,  see  Natural  Rights, 
Natural  Law,  etc. 

Stephen,  Sir  J.  F.,  Liberty,  Equality, 
Fraternity,  quoted,  203  n.,  341, 
364  n. 

Stoics,  views  of,  regarding  natural 
law,  98. 


448 


IKDEX 


Struggle  for  Existence,  in  "State  of 

Nature,"   93;    in  tiuman   society, 

328-37,  420. 
Suarez,  political  theories  of,  58,  59. 
Suffrage,  extension  of,  410-12  ;  not  a 

"right,"  413-14. 
Survival  of  Fittest,  in  human  society, 

328-37. 

Tatlor,  F.  M.,  Bight  of  the  State 

to  Be,  quoted,  39,  132  ;  cited,  95  n., 

114;  views  criticised,  39-41. 
Temple,  Sir  William,  Of  the  Original 

and  Nature  of  Government,  cited, 

315  n.  {seq. 

Tendencies,  present  political,  404  et 
Territorial  Element,  not  necessary  to 

conception  of  the  State,  3  n. 
Thayer,   Art.    Judicial    Legislation, 

cited,  152  n. 
Thomasius,  political  views  of,  63  n, 
Tocqueville,  Alexis  de.  Democracy  in 

America,  quoted,  239,  410, 412,  419, 

426. 
Treumann,    Die    Monarchomachen, 

cited,  278  n. 
Tjrrants,  absque  titulo,  and  ah  exer- 

citio,  60.  [238. 

Twiss,  The  Law  of  Nations,  cited. 

Unions  op  States,  organized  and 
unorganized,  234  et  seq. 

United  States,  views  of  publicists  re- 
garding location  of  Sovereignty 
in,  239 ;  Confederacy  or  Federal 
State,  266  et  seq. 

Utilitarian  Basis  of  the  State,  38-41, 
111-12. 


Vattell,  Law  of  Nations,  quoted, 

103. 
Volk,  definition  of,  9-11. 

Waitz,  Grundzuge  der  Politik,  cited, 
234,  238  ;  classification  of  govern- 
ments of,  379. 

Walker,  Pres.  F.  A.,  Art.  Growth  of 
American  Nationality,  quoted, 
271  n. 

Ward,  Prof.  L.  F.,  Psychic  Factors 
of  Civilization,  cited,  37  n.  ; 
quoted,  141,  329;  Art.  Political 
Ethics  of  Spencer,  cited,  324  n. 

Warner,  Prof.  A.  G.,  quoted,  336  n. 

Welcker,  classification  of  govern- 
ments of,  378. 

Westerkamp,  Staatenbund  und  Bun- 
desstaat,  cited,  234,  261  n. 

Wharton,  Commentaries  on  Ameri- 
can Law,  quoted,  202 ;  Austin 
criticised  by,  109. 

Wheaton,  Digest  of  International 
Laio,  cited,  239. 

White,  A.  D.,  Art.  A  Catechism  of 
Bevolutionary  Beaction,  cited, 
49  n. 

Will,  General,  Eousseau's  conception 
of,  288  et  seq.  ;  of  the  State,  see 
Sovereignty. 

Wilson,  Prof.  Woodrow,  views  re- 
garding non-sovereign  State  criti- 
cised, 249-51 ;  An  Old  Master  and 
Other  Essays,  quoted,  286,  307-8, 
423,  434. 

World-State,  13,  407-10. 

ZwiNGLi,  political  views  of,  48. 


The  American  Commonwealth. 


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a  charming  literary  flavor  to  the  whole.  The  reader  will  not  lay  the  book 
down  till  read  through,  and  he  will  rise  from  its  perusal  with  new  and  nobler 
ideas  of  modern  government."  —  Living  Church. 


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ADOPTION    AND    AMENDMENT   OF 
CONSTITUTIONS 

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ESSAYS  ON  QUESTIONS  OF  THE  DAY: 

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his  writings." —  Critic. 

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prejudices,  of  popular  thought,  in  short,  as  well  as  of  the  political  plans  of  the  few  so-called 
leaders  of  men."  —  Hamlin  Garland,  in  TAe  Arena, 


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